Nottle and National Disability Insurance Agency
[2021] AATA 1014
•9 April 2021
Nottle and National Disability Insurance Agency [2021] AATA 1014 (9 April 2021)
Division:GENERAL DIVISION
File Number(s): 2019/6488
Re:Carmel Nottle
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Senior Member B J Illingworth and Member I Thompson
Date:09 April 2021
Place:Adelaide
The reviewable decision made by the NDIA on 12 September 2019 is set aside pursuant to s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth). The matter is remitted to the NDIA for reconsideration in accordance with the direction that the funding for acquisition, training, and maintenance of the hearing assistance dog, Eddie, is a reasonable and necessary support in relation to the statement of supports in Ms Nottle’s plan dated 15 April 2020.
.....................[SGND]........................... .....................[SGND].......................
Senior Member B J Illingworth Member I Thompson
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – review of statement of participant supports – reasonable and necessary supports – applicant sought review of statement of participant supports to allow for funding for training of a hearing assistance dog – decision set aside and remitted
Legislation
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
Cases
McGarrigle v National Disability Insurance Agency [2017] FCA 309.
Mulligan v Virgin Australia Airlines Pty Ltd [2015] FCAFC 130.
National Disability Insurance Agency v WRMF [2020] FCAFC 79.
Secondary Materials
Planning Operational Guideline, National Disability Insurance Agency
Including Specific Types of Supports in Plans Operational Guideline – Assistance Animals, National Disability Insurance Agency
REASONS FOR DECISION
Senior Member B J Illingworth and Member I Thompson
09 April 2021
INTRODUCTION
The Applicant, Carmel Nottle, is a participant in the National Disability Insurance Scheme (NDIS) and receives funding under a participant plan for the maintenance of a trained and certified hearing assistance dog called Bunji. Ms Nottle has been a participant in the NDIS since 17 May 2018[1].
[1] Exhibit A, T6, page 17.
Bunji is nearing the end of his working life as a hearing assistance dog. He will need to be replaced. Ms Nottle is asking the NDIS to fund the cost of purchasing, maintaining and training another dog called Eddie, who will act as her new hearing assistance dog when the time comes to replace Bunji, which time is not far away.
Ms Nottle resides alone, she is employed as a lecturer at University of South Australia. She requires a hearing dog to assist with daily living activities as she has moderate to severe mixed hearing loss in the right ear and a moderate to profound mixed hearing loss in the left ear. Her hearing loss is associated with Cruzon’s syndrome (the premature fusion of certain skull bones) and is permanent. She received a bone anchored implant in the left ear in mid-2017 and she has been a client of the South Australian Cochlea Implant Centre since October 2016. She relies on the bone conduction implant to detect sound and distinguish speech, and when not wearing it (for example, while showering and sleeping) she has little sound awareness. She uses a conventional hearing aid in her right ear.
The Respondent, the National Disability Insurance Agency, (NDIA) acknowledges that funding for a trained and certified hearing assistance dog is appropriate as it is a reasonable and necessary support which is funded under the NDIS. The funding is in place presently for Bunji and, if or when Eddie becomes a hearing assistance dog, he will also be a support for which Ms Nottle may be funded under her NDIS plan.
The issue is whether the NDIA should concurrently fund two assistance dogs. That is, one dog who is currently trained, certified and providing assistance (Bunji) and, at the same time, a second dog (Eddie) who is still being trained by Ms Nottle and is not certified.
Ms Nottle seeks a seamless retirement and replacement plan for her current assistance dog, Bunji. She intends to keep Bunji as a companion dog after his retirement. She purchased Eddie when he was an eight-week-old puppy and she has been training him with the goal of completing the requisite public access test and thereafter replacing Bunji as her hearing assistance dog
Ms Nottle wants to and is currently providing the training that Eddie will require to the requisite level to become her hearing assistance dog as the successor to Bunji. As an owner and qualified dog trainer, she sees unique benefits in training Eddie herself, when compared with having a prospective hearing assistance dog trained or co-trained by an organisation. She trained her current dog, Bunji to meet the South Australian government standards for an accredited disability dog under the Dog and Cat Management Act 1995 (the DCM Act).
In South Australia, where Ms Nottle resides, the accredited assistance dog training organisation has criteria in place which will not allow assistance dogs in homes where there are other dogs.
Ms Nottle requested the NDIA to conduct an internal review of its decision to approve her previous NDIS plan which commenced on 16 January 2019.[2] She had asked for support items which included funding to acquire and train an assistance dog ($14,928) and funding for ongoing care, training and support requirements ($5,044). The result of the NDIA’s internal review was to reject her requests for those dog related supports, and the NDIA confirmed the initial decision to approve the statement of participant supports as set out in Ms Nottle’s NDIS Plan.
[2] Exhibit A, T 22, page 75.
10. The explanation which the delegate of the NDIA provided in a letter dated 12 September 2019 to Ms Nottle included in part[3]:
… The Agency recognises training organisations that are registered under the requirements in the state and/or territory in which the participant wishes to use the assistance animal. Recognised training organisations are listed on the Assistance Dog’s International website as Australian – affiliated (“candidate” or “accredited”) programs. The Delegate notes that the participant has unsuccessfully attempted to access an animal through Lions Hearing, who are a registered training organisation… there does not appear to be a guarantee with regards to the replacement process, should an assistance animal be unable to proceed with training or support or that the assistance animal will be fully temperament tested. These are essentials to ensure that an assistance animal is able to perform safely under times of significant stress and is not a risk to themselves, the participant or others. Further, the Agency does not recognise animals that have been owner trained.
[3] Exhibit A, T 2, page 8.
11. Subsequently, Ms Nottle sought review by this Tribunal. The hearing took place on 29 and 30 October 2020. Ms Nottle attended the hearing in person and was self-represented. Ms Keesing represented the NDIA. Ms Nottle gave evidence and called four witnesses. The NDIA called one witness.
LEGISLATION AND GUIDELINES
12. The NDIS is established by the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act), and the NDIA administers the NDIS.
13. The objects of the NDIS Act are set out in section 3 and make particular reference to the purpose of providing reasonable and necessary supports for participants in the Scheme.
Subsection (3)(1) provides in part that the objects of the Act are to:
...
(c) support the independence and social and economic participation of people with disability;
...
(e) enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports;…
(f) facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability …
14. In giving effect to the objects, regard must be given to, amongst other things, ‘the need to ensure the financial sustainability’ of the Scheme and ‘the provision of services by other agencies, Departments or organisations and the need for interaction between the provision of mainstream services and the provision of supports under the National Disability Insurance Scheme.’
15. Section 4 of the NDIS Act sets out general principles to guide decisions and actions taken under the Act. Relevantly, those principles include:
…
(4) People with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports.
(5) People with disability should be supported to receive reasonable and necessary supports, including early intervention supports
…
(11) Reasonable and necessary supports for people with disability should:(a) support people with disability to pursue their goals and maximise their independence; and
(b) support people with disability to live independently and to be included in the community as fully participating citizens; and
(c) develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment
…
(15) Innovation, quality, continuous improvement, contemporary best practice and effectiveness in the provision of supports to people with disability are to be promoted.
A participant’s plan and reasonable and necessary supports
16. Section 33 of the NDIS Act provides for the content of participant plans as follows:
Matters that must be included in a participant’s plan
(1) A participant’s plan must include a statement (the participant’s statement of goals and aspirations) prepared by the participant that specifies:
(a) the goals, objectives and aspirations of the participant; and
(b) the environmental and personal context of the participant’s living, including the participant’s:
(i) living arrangements; and
(ii) informal community supports and other community supports; and
(iii) social and economic participation.
(2) A participant’s plan must include a statement (the statement of participant supports), prepared with the participant and approved by the CEO, that specifies:
(a) the general supports (if any) that will be provided to, or in relation to, the participant; and
(b) the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme; and
(c) the date by which, or the circumstances in which, the Agency must review the plan under Division 4; and
(d) the management of the funding for supports under the plan (see also Division 3); and
(e) the management of other aspects of the plan.
Reasonable and necessary supports
Section 34(1) of the NDIS Act provides that, for the purposes of specifying in the statement of participant supports the reasonable and necessary supports that will be funded under the scheme, the CEO must be satisfied that:
(a) the support will assist the participant to pursue the goals, objectives and aspirations in the participant’s statement of goals and aspirations;
(b)the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
(c) the support represents value for money in that the costs of the support are reasonable relative to both the benefits achieved and the cost of alternative support;
(d) the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e) the funding or provision of the support takes account of what is reasonable to expect families, carers, informal networks and the community to provide;
(f) 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 delivery or support services offered:
(i) as part of a universal service obligation; or
(ii) in accordance with the reasonable adjustments required under a law dealing with discrimination on the basis of disability.
17. If one of the above requirements in s 34(1) (a) – (f) is not satisfied, then the particular item is not a reasonable and necessary support.
18. In McGarrigle v National Disability Insurance Agency, Mortimer J stated with respect to the question of whether a support is reasonable and necessary[4]:
Whether a support is ‘reasonable’ requires a different assessment to whether a support is ‘necessary’. Again, it is not necessary in the context of these proceedings 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’.
[4] [2017] FCA 309, [91] – [93].
19. The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (the Support Rules) deal with the assessment and determination of ‘reasonable and necessary supports’ that will be funded under the Scheme. The Support Rules form part of the legislation.
20. The Chief Executive Officer (CEO) of the NDIA has issued an Operational Guideline relevant to the provision of assistance animals in NDIS plans[5] to be taken into account by the Tribunal unless there are good reasons not to, such as inconsistency with the legislation.
[5] Exhibit C, R 17, page 601.
NDIS Plan
21. Ms Nottle’s NDIS plan was approved on 16 January 2019 with a review date of 16 January 2020.[6] Following a remittal to the NDIA under section 42D of the Administrative Appeals Tribunal Act 1975, the review date was changed and extended to 15 April 2021.[7]
[6] Exhibit A, T 27 page 103.
[7] Respondent's Statement of Facts, Issues and Contentions, paragraph 30.
22. Ms Nottle’s NDIS plan specifies two short term goals as follows: –
I would like to maintain my level of independent living by accessing maintenance for my hearing aids and my dog maintenance
I would like to maintain my level of independence and social and community participation by accessing support for timely purchasing and training a new assistance dog.
23. The medium or long-term goal in the NDIS plan relates to assessment for assistive technology which may assist with everyday tasks and enhance Ms Nottle’s independence. The most pressing issue for this review arises out of the short-term goals concerning the training of a new assistance dog.
24. Total funding in Ms Nottle’s NDIS Plan (16 January 2019 – 16 January 2020) amounted to $9,956.52 which included:
(a) core support funding of $3,670.95 comprising funding for assistive technology and funding for the costs of maintaining an assistance dog; and
(b) capacity building support funding of $6,284.57 comprising funding of $4,859.56 for improved daily living enabling access to maintenance for assistive technology and a new assistance dog; this part of the plan also mentions support for individual assessments including assistance from an assistive technology assessor; the remainder of the funding involves costs for financial administration.
25. Bunji was the assistance dog at the time of the commencement of the NDIS plan on 16 January 2019. Ms Nottle purchased Eddie in March 2019.
26. Ms Nottle’s current NDIS plan starts on 15 April 2020 with a review date of 15 April 2021. Total funded supports amount to $11,432.62 with the core support funding of $4,806.40 including a component for costs of maintenance for her assistance dog Bunji[8].
[8] Exhibit C, R 6, page 505.
Issues and contentions
27. In requesting an internal review of the decision to approve the statement of supports in the NDIS Plan, Ms Nottle made a number of points which include[9]:
[9] Exhibit A, T 22, pages 75 – 93.
(a)Currently she has an assistance dog which has been Public Access Test (PAT) accredited by the Dog and Cat Management Board (the Board), which is one of the approved organisations in South Australia that can accredit assistance dogs. The current assistance dog is almost 8 years old and has an expected working life of 9 to 10 years. She is seeking funding to purchase an assistance dog which will then replace the current assistance dog upon his retirement. The assistance dog performs trained tasks at home, at work, in the community and on public transport.
(b)She is not eligible for an assistance dog from the only specific hearing dog association, Australian Lions Hearing Dogs (ALHD), as she wants to retain her current assistance dog as a companion upon retirement and ALHD does not allow other dogs in the household. For that reason, she had initially trained her current assistance dog as she already had a companion dog at home.
(c)She has experience and credentials in training and judging through volunteer positions in dog clubs. In relation to her current assistance dog, her application for the public access test and medical requirements as required by the Disability Discrimination Act 1992 (the DD Act) was supported by her doctor and her audiologist.
(d)NDIA will only recognise training organisations that are listed on the Assistance Dogs International (ADI) website, that is, dogs that are ADI accredited. In South Australia, the regulatory body under the DCM Act prescribes accreditation bodies for accrediting assistance dogs. There are organisations that have the ADI accreditation that do not meet the NDIS requirements for state registration. On the South Australian list, only ALHD provides training for hearing assistance dogs, as opposed to vision impairment, but they will not support co-training, namely providing a hearing dog in which residence is another dog
(e)There is a Federal Court ruling that an animal may be an assistance animal under the DD Act if it has received relevant training, regardless of who has provided the training, and it is unlawful to discriminate against someone if the assistance animal meets the DD Act requirements (Mulligan v Virgin Australia Airlines Pty Ltd [2015] FCAFC 130.)
28. In her application to the Tribunal, Ms Nottle wrote that the NDIA decision is wrong because[10]:
information provided has not been taken into account, nor has the law been applied correctly as their reasoning is in conflict with DDA. No consideration of my personal circumstances have been made and there has also been no communication with me to clarify any information provided or any attempt to reach a suitable outcome. The decision was just to deny funding.
[10] Exhibit A, T 1, page 6.
29. In opening and closing submissions to the Tribunal, the NDIA made four contentions:
Ms Nottle is not entitled to receive NDIS funding for a dog that is not her hearing assistance dog.
The proposed development of a hearing assistance dog is not most appropriately funded or provided for through the NDIS and does not satisfy section 34 (1) (f) of the NDIS act.
The funding which Ms Nottle seeks is prohibited because it would duplicate a support already funded.
Ms Nottle should only receive funding for costs specific to the relevant support.
30. In her opening and closing submissions, Ms Nottle disputed each one of the NDIA’s four contentions.
EVIDENCE
31. Ms Nottle provided a written statement of lived experience[11]and she also gave evidence to the Tribunal. Before becoming a participant in the NDIS, she pointed out in her statement that she had not received any funding for her disability, and she had taken the responsibility upon herself for the costs of the supports associated with her disability. In the discussions for her first NDIS plan, it was important to her to include within the goals a transition for the retirement of her current assistance dog that she had self-funded and trained prior to accessing the NDIS, and the transition to a replacement assistance dog.
[11] Exhibit C, A 13, pages 231 – 237.
32. Ms Nottle is a permanent, full-time academic staff member at the University of South Australia. Her professional qualifications include a Bachelor of Science (sports science) (Honours) and a doctorate in Exercise Physiology. She has been employed at the University for 11 years where she lectures in Human Movement, Sports Exercise and Clinical Exercise Physiology. She does not require assistance with self-care or household tasks. Her assistance dog is vital as a support for her disability in relation to her work, her social and community activities and her safety and security at home. She is passionate about training dogs. She participates in community organisations such as the Australian National Kennel Council as a rally obedience and endurance test judge, as a committee member and instructor at a district obedience dog club, as a steward with the Australian Flyball Association, as a member of a subcommittee of the Labrador Retriever Club of South Australia, as a trial convener of the retrieving ability test for gun dog trials for the Gundog Club of South Australia, and as a board member of Animal Therapies Ltd. She is an accredited exercise physiologist with Exercise and Sports Science Australia, an accredited anthropometrist through the International Society for Anthropometry and a level II sports trainer with the South Australian Sports Medicine Association[12].
[12] Exhibit C, A 13, page 232.
33. A letter from the Para District obedience dog club confirms the active participation of Ms Nottle in that organisation for the last 10 years in various roles including as secretary, committee member, administrative roles, instructor and judge in various aspects of dog training and competitions[13].
[13] Ibid.
34. In her statement, Ms Nottle discussed the steps that she was proposing for transition from one assistance dog to the next. She wrote that the money allocated in the NDIS plan for the maintenance of her current assistance dog (Bunji) does not fully cover the new costs of maintenance (of Eddie) and she was self-funding those additional costs. Specifically, in relation to the transition period, she was using funds from the plan to obtain assessments from allied health professionals in order to gather evidence for her proposal for a replacement assistance dog. She wrote[14]:
not having a clear progression from the retirement of my current assistance dog will have a significant impact on my NDIS goals. Since my current assistance dog was trained when already an adult dog I started my research and planning for his replacement on retirement as early as 2016 when I realised the impact of being without an assistance dog would have. It is why it was stressed at my first ever planning meeting as a priority for me to maintain my independence.
[14] Ibid, page 233.
35. A report from an audiologist, Ms Abela, at the South Australian Cochlear Implant Centre confirms that Ms Nottle has moderate to severe mixed hearing loss in her right ear and a moderate to profound mixed hearing loss in her left ear. Her hearing loss is associated with Cruzon’s syndrome and it is permanent, with a significant impact on her daily life. The report confirms that she relies on her bone conduction implant to detect sound and discriminate speech. She uses a conventional hearing aid in her right ear. The report states that Ms Nottle requires assistance from other people, her hearing dog and assistive technology on a daily basis[15].
[15] Exhibit A, T 5, page 12.
36. Ms Swiderski is the clinical manager and audiologist at the South Australian Cochlear Implant Centre. She conducted an assistive technology assessment for the NDIA and wrote a report dated 15 March 2019[16]. She also gave evidence. She confirmed that Ms Nottle requires a replacement assistance dog to address specific functional limitations which include her inability to hear home alerts when she is not wearing her hearing devices and also in the presence of competing noise or over distances, her inability to hear the smoke alarm when she is not wearing her hearing devices and her inability to hear sounds and people talking at times when she is outdoors. She noted that Ms Nottle relies on her assistance dog to alert her to people approaching from out of her view and also to assist her to catch public transport, which is her primary means of getting to and from work and other appointments. In evidence she confirmed her role does not include assessing the suitability of particular assistance animals.
[16] Exhibit B, ST 1.
37. An occupational therapist, Ms Basedow, provided a functional capacity assessment report on 9 January 2020[17]. At a general level, Ms Basedow’s report noted benefits of an assistance dog which include spatial awareness, for example alerting the participant to danger or risk outside of her peripheral vision which becomes of particular importance when she is walking on foot paths, crossing roads and attending public places. The assistance animal can alert the participant to sounds such as a siren. At home, the assistance dog alerts the participant when the doorbell rings and when the smoke alarm goes off. For people with profound hearing loss the role of the assistance animal fills the gap between the assistance that hearing aids provide and the capacity to function fully in the community.
[17] Exhibit C, A 4, pages 181 – 189.
38. Ms Basedow’s report included comments about the role of an assistance dog in Ms Nottle’s everyday life, noting that she had been using an assistance dog for several years for support at home, work and in the community. The report noted that Ms Nottle does not wear hearing aids to bed because of discomfort, preferring to have an alarm under her pillow which wakes her if the dog has not woken her. When she is asleep, she relies on the dog to wake her in an emergency which the dog is trained to do. Going to work involves walking to the train station, catching the train to work and walking from the train station to the workplace. She wears both hearing aids unless it is very windy. At work, Ms Nottle uses the bone anchored hearing aid which is particularly useful in a quiet environment. Her assistance dog is with her every moment of each day.
39. Dr Young is a colleague of Ms Nottle, having worked with her for several years at the University of South Australia. Dr Young’s expertise is in health promotion. She has conducted research and contributed to books and various publications on numerous aspects of health promotion, which includes the relationship between humans and pet animals. She provided a written statement[18] and also gave evidence. She has observed Ms Nottle’s concern for the wellbeing of her dogs, including a current assistance dog and her assistance dog in training. She has observed the communications between Ms Nottle and her assistance dog at the University and the manner in which they interact and support one another. She describes Ms Nottle as being devoted to her dogs with a social world centered on training dogs and dog sports.
[18] Exhibit C, A 6, pages 192 – 195.
Assistance dog – Bunji
40. In her evidence, Ms Nottle said that, as an owner and trainer, she successfully trained her current dog, Bunji, to gain accreditation about five years ago by the DCM Board of South Australia to meet South Australian government standards for an accredited disability dog under the DCM Act. It required an assessment both of the dog and the handler. She had acquired Bunji when he was eight weeks old as a companion for her other dog, Gypsy. The two dogs were present in her home throughout the time of Bunji’s training.
41. Dr Pearce is an experienced clinical psychologist and manager with a history of senior level management roles in disability services, mental health services and adjunct lectureship positions in universities. He wrote a report on 14 March 2019[19] about Ms Nottle and her assistance dog which included this comment:
Commensurate with her academic and vocational achievements and by observations and interview, I believe it is reasonable to assume that she has the cognitive and adaptive capacity to understand and fulfil the responsibilities and activities of owning, managing and handling an assistance dog.
In his view, the assistance dog provides her with the level of support that enables her to live alone and independently, while also enabling her to enhance her career and social and community life.
[19] Exhibit A, T 19, page 67.
Transition to a new assistance dog
42. As part of her preparation for arranging transition from her current assistance dog Bunji when he turns approximately 10 years of age to a new assistance dog, Ms Nottle investigated the criteria which she understood to apply in South Australia. She learned that the key provider of hearing assistance dogs does not permit other dogs in the house during training and discourages contact between trained dogs and other dogs. At a philosophical and at a practical level, she does not agree with that approach generally and particularly in so far as it relates to her own circumstances.
43. Ms Nottle is not eligible for an assistance dog from the only specific hearing dog association, ALHD, because of her proposal to retain her current assistance dog as a companion dog upon his retirement.
44. A letter from the CEO of ALHD written on 25 February 2020[20] confirms that they do not place hearing assistance dogs in homes where there is already another dog in residence. This policy has existed for a long time and it is not unique to their organisation. The letter points out the difference in the type of assistance provided by hearing assistance dogs compared with the role of a mobility assistance dog and also the work done by a guide dog. The letter continued:
History has shown us that in instances where another dog is living in the working environment of a hearing assistance dog there is a deterioration in the quality of sound alert work as well as an increase in behavioral issues.
[20] Exhibit C, R 4, page 499.
45. Training and delivery of a hearing assistance dog is an investment by ALHD of $37,000. The funds are raised through donations and voluntary work under the auspices of the numerous Lions clubs across Australia.
46. A letter from the Development Director of ALHD dated 21 July 2020[21] provides details about the process and costs for training hearing assistance dogs under this program. Key points which arise out of that correspondence, for present purposes, include the following:
[21] Exhibit C, R 12, page 555.
(a) applicants for a hearing assistance dog undergo a rigorous process in the application, interview, approval and delivery stages;
(b) once an application is approved, a recipient is placed on a waiting list until such time as a suitable fully trained hearing assistance dog becomes available;
(c) currently the waiting time is two years;
(d) upon delivery of the hearing assistance dog to the new recipient, an acclimatization process takes place;
(e) for the next three months support is provided and then an accreditation assessment is conducted by the program director which should lead to full accreditation;
(f) occasionally the partnership between dog and new recipient fails and in that event the recipient will be offered an alternative dog when one becomes available;
(g) two yearly accreditation assessments are scheduled, and the hearing assistance dog is eligible until it reaches 13 years of age; and
(h) 12 months prior to retirement of the hearing assistance dog, the owner has the option of either keeping the dog or rehoming it in favor of a replacement.
47. Ms Nottle described the background to her decision to begin a transition to a new assistance dog. She wrote[22]:
when I asked for funding the way that I did I had already done a lot of background research into the breeder that I wanted to use, into the trainers that I wanted to use, into the way in which I would train the dog which is why I supplied quotes from the breeders and trainers that I did. I am plan managed for my funding so that I can use providers that I trust even if they are not NDIS registered. When funding was not provided in my plan I was faced with the prospect of never getting the funding that I required and no suitable alternative for my needs have ever been identified by the NDIS. The extensive delays that I have consistently experienced in relation to NDIS funding also meant that I was certain to be left without a smooth transition from one assistance dog to another given the length of time it takes to train a dog once a suitable dog is identified.
[22] Exhibit C, A 8, page 198.
48. A critical component in the initial step is to decide upon the breed of animal. In evidence, Ms Nottle confirmed that she chose a breeder, Reveirter Labrador Retrievers, as they are one of the main breeders for a registered training organisation, namely the Centre for Service and Therapy Dogs Australia. A letter from Reveirter Labrador Retrievers written by Noel Eltringham[23], notes that over 60 puppies had been trained by that breeder for people with a wide range of disabilities and it was thought that some of those dogs had become partly or wholly funded under the NDIS. It also notes that the Department of Veteran Affairs had taken 18 Labrador retriever puppies to be trained as post-traumatic stress disorder assistance dogs.
[23] Exhibit C, A 7, page 196.
49. The quality of the breeding of these dogs was acknowledged in a letter from the General Manager of the Centre for Service and Therapy Dogs Australia with particular reference to the purchase of three Labrador retriever dogs from Noel Eltringham[24]. The letter included comments such as: “… these animals have proven to be most suitable for our training for service and therapy dogs and their temperaments are most sound.”
[24] Exhibit A, T 24, page 95.
50. Professor P McGreevy is a professor of animal behaviour and welfare at the School of veterinary science at the University of Sydney. He has researched animal behaviour and welfare and written extensively about that subject. At the request of the NDIA, Professor P McGreevy provided reports dated 8 April 2020[25] and 21 May 2020[26]. Prior to providing his reports, Professor McGreevy received copies of the T documents and supplementary T documents which provided a substantial amount of information that includes all of the relevant details regarding Ms Nottle’s application, both specifically in relation to her, together with research articles and commentaries. Professor McGreevy also gave evidence by telephone at the hearing.
[25] Exhibit C, R 8, page 521.
[26] Exhibit C, R 10, page 536.
51. In his first report Professor McGreevy outlined his view about the best practice for training assistance dogs which includes but is not limited to:
(a) breeding from behaviourally and physically sound bloodlines;
(b) optimal socialisation of puppies;
(c) selection of the right dog for the intended context;
(d) training in light of the individual dogs’ strengths and weaknesses;
(e) applying learning theory and optimal dogmanship;
(f) ongoing aptitude testing;
(g) training in the company of familiar and unfamiliar canine company and other distractors and eventually in public; and
(h) proof of training in the company of familiar and unfamiliar canine company and other distractors and eventually in public.
52. In evidence to the Tribunal, Professor McGreevy confirmed his expectation or understanding that Ms Nottle would be implementing those types of strategies, testing, assessments and processes in the training of her assistance dog.
53. In his report, Professor McGreevy also observed that breed type alone does not constitute a predictor which will reliably demonstrate that the dog will be successfully trained. Professor McGreevy added that behavioural testing is more reliable as a predictor of training outcomes than relying simply on breed. He was requested specifically to comment upon the issues, if any, arising out of an assistance dog in training being in the same home as a pet or companion dog. He wrote[27]:
Under the most desirable circumstances that include the right blend of trained dogs and trainee dogs, having a trained assistance dog in the presence of a trainee dog may boost a trainee dogs attention (through processes such as stimulus enhancement that amplify the relevance to the dog of various objects and cues).
[27] Exhibit C, R 8, page 530.
54. Professor McGreevy supports the notion that current and future owners of assistance animals should participate actively in training their own dog. One of the factors is the mitigation of costs of preparing an assistance animal. Suitable support and guidance might be needed; the level of support would need to relate to the capability of the individual[28].
[28] Ibid.
Assistance dog in training – Eddie
55. After the first NDIS plan was approved, Ms Nottle resolved to move on with the transition. Several factors were involved. It was timely to arrange for replacement of her current assistance dog. Having had the benefit of experience with Bunji, Ms Nottle was aware of the actual benefits, and not just the potential benefits, which an assistance dog provides. In addition, she sourced literature which confirms the practical benefits. She regards her proposal as the only option which enables her to meet the state government regulatory requirements. She considered this to be a result of her experience with Bunji, and that she had the capacity and skills to train an assistance dog. Accordingly, as she described the situation[29]:
I made the decision in March 2019 to obtain a pup from Reveirter Labradors, to ensure that my support needs would be met within the timeframe that I required. I informed Noel Eltringham that if a suitable puppy from their summer 2019 litters was identified that I was interested. After a careful selection process by Noel a male dog was identified as showing all the correct temperament qualities who was not already going to other assistance dog training organisations. The dog was provided to me in March 2019. Since this time, I have been self-funding all costs associated with raising, caring for and training…Eddie, with the aim of him being accredited by the Dog and Cat Management Board of South Australia as an assistance dog at approximately two years of age. Assuming Bunji remains healthy and able to work this allows for the smooth transition from one do to the other that I identified I required.
[29] Exhibit C, A 8, page 199.
56. Ms R Bell is a psychologist with expertise in behavioural science and in animal science, with experience in successfully training numerous assistance animal owner and trainer teams. She provided support in a letter dated 18 February 2019 to Ms Nottle for the acquisition, training and maintenance costs of an assistance animal[30]. She noted that Ms Nottle would source the puppy from an Australian National Kennel Council registered breeder with the benefit of having the sire and dam selected through assessment. Ms Bell confirmed her confidence in Ms Nottle’s ability to care for and train an assistance dog with support from qualified dog trainers to enhance the prospects of success. She reported several benefits when an individual is involved in co-training as the dog can learn tasks in the environment in which the task will be performed and in the household in which it will live. Ms Bell confirmed the acquisition and training costs of $14,928.93 prior to public access test as well as ongoing care, training and support requirements in the sum of $5,044.00.
[30] Exhibit A, T 13, page 38.
57. Ms Davison is a behavioural dog trainer. She has experience dating back 30 years and during that time she has worked with people with disability in a variety of roles. She also has qualifications and experience in working with animals as a trainer. Her work has included lecturing and training students and volunteers in animal studies and companion animals. She has developed and presented workshops, seminars and training programs for organisations such as guide dog associations, veterinary clinics, veterinary nurses and community groups in Australia and New Zealand.
58. Ms Davison provided a written statement[31] and gave evidence to the Tribunal. She runs a program called “scholars in collars” for puppies. Eddie attended seven of those sessions between 8 to 16 weeks of age. In addition, Ms Nottle attended training workshops with Eddie over the following months and, by the time of Ms Davison’s written statement, she considered that Eddie would be a suitable candidate for an assistance dog.
[31] Exhibit C, A 14, page 238.
59. An assessment of Eddie was provided by Ms Waechter on 4 April 2020[32]. Eddie was five months old when Ms Nottle enrolled him in Ms Waechter’s “Power Pups” course. Ms Waechter has professional qualifications in veterinary nursing and professional experience in working in agencies such as Guide Dogs SA/NT and working alongside assessors in national and international guide dog schools. She also gave evidence. She commenced training Eddie in April 2019. Eddie is a Labrador and Ms Waechter confirmed that Labradors are bred for the purpose of becoming assistance dogs and have exceptional qualities as assistance animals.
[32] Exhibit C, A 5, pages 190-191.
60. Ms Waechter commented that training assessments are better predictors of training outcomes than the breed itself. She discussed the impact of a second dog in the home while the dog is in training which includes both positive and negative consequences.
61. Ms Waechter concluded that the selection of Eddie by experienced breeders resulted in his placement with Ms Nottle which was a sound decision. In her report she made significant comments as follows[33]:
I assessed Eddie before he commenced his first course as he was technically too young for the class (6 – 18 months of age is when I usually accept pups) and accepted him at 5 months due to his behaviour. It was obvious that he was from assistance dog breeding stock as his temperament was exceptional and his relationship with (Ms Nottle) was sound. With my years of experience, I have been trained to recognise a sound assistance dog and I have had no concerns about Eddie’s suitability since his first class. He has now completed several courses and continues to show all the signs I would look for in an assistance dog. He has a good level of mental sensitivity, low dog distraction, exceptional focus on (Ms Nottle), excellent willingness to work, and excellent initiative.
[33] Ibid, page 191.
62. In her report and in evidence Ms Waechter addressed the question of the impact, if any, of another dog in the home while the assistance dog in training, Eddie, is also in the home. In evidence, Ms Walker discussed the potential impacts which include advantages and disadvantages. An advantage is that the second dog may develop good habits from the first dog. Conversely, the dog in training may learn some bad habits. Each situation should be addressed according to the circumstances. If the original dog is a trained assistance dog, then its behaviour may have positive effects on the assistance dog in training, while the consistent exposure to another dog might reduce possible reactivity to external dogs.
63. In evidence, Ms Waechter provided her opinion about Eddie’s prospects of passing the public access test. She is confident that he will succeed in the test which could take place when he is around 12 to 18 months of age. Her opinion is based upon her professional experience together with her observations about Eddie’s progress during the training which she has provided. In her report she wrote:
…with my years of experience, I have been trained to recognise a sound assistance dog and I have had no concerns about Eddie’s suitability since his first class. He has now completed several courses and continues to show all the signs I would look for in an assistance dog. He has a good level of mental sensitivity, low dog distraction, exceptional focus on (Ms Nottle), excellent willingness to work and excellent initiative.
She considers that the combination of breed, the work that was done with Eddie as a baby puppy before selection and placement with Ms Nottle, contribute to his capabilities that were evident at the time she wrote her report April 2020[34].
[34] Ibid.
64. In her evidence to the Tribunal, Ms Nottle described Eddie as an assistance dog in training who also provides her with companionship and support. She said that the training of Eddie has not been hindered by the presence of other dogs in the household. On the contrary, it has been enhanced. She acknowledged that another dog in the house could be a bad influence. The capacity of the handler is a relevant consideration. For Ms Nottle, her experience in successfully training Bunji in circumstances where there was another dog in the house at all times confirmed for her that that she would be able to successfully train Eddie in similar circumstances where another dog was in the house. Importantly, it is not a matter of luck or chance. Ms Nottle uses techniques in training which build on the advantages of having two dogs together and overcoming any disadvantages.
CONSIDERATION
65. In considering whether the funding for the training or assistance dog is a reasonable and necessary support, the Tribunal must have regard to the criteria in section 34 (1) of the NDIS Act as further elaborated in the Support Rules. The criteria which are set out in section 34(1) are cumulative so that if the assistance animal training does not meet all the criteria it will not be a reasonable and necessary support for the purpose of section 34 of the NDIS Act.
66. Rule 5.1 of the Support Rules provides that 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.
67. The CEO of the NDIA has issued an Operational Guideline – Assistance Animals (the Operational Guideline)[35] to be taken into account by the Tribunal provided the Guidelines are not inconsistent with the provisions of the legislation. The Operational Guideline includes a definition of ‘assistance animal’ which includes that it is confined to a dog guide, a companion animal, an emotional support animal, a facility animal, a medical alert animal, a therapy animal and a visitation animal. A dog guide is described as: “a type of assistance animal that is specifically trained to support people with vision impairment or blindness. The terms guide dog and seeing dog are brands of dog guides.”
[35] Exhibit C, R 17, pages 601 – 606.
68. The Operational Guideline makes no reference specifically to hearing assistance animals.
69. Section 14.6 of the Operational Guideline states that the NDIA will generally not provide funding to train a dog before it has become a qualified assistance animal. The reasons include the lack of a guarantee that the dog will complete the training successfully. Accordingly, the Operational Guideline states that the NDIS does not provide funding for a participant to train their own dog to be an assistance animal and that also applies if a registered assistance animal provider is engaged to train the dog. Furthermore, the NDIA does not fund a provider to supply a dog as an NDIS support until the dog is fully trained and qualified as an assistance animal.
70. The Operational Guideline is dated 27 July 2020 and appears to have come into effect well after Ms Nottle’s first NDIS plan, which commenced on 16 January 2019.
71. An assistance animal is defined in subsection 9(2) of the DD Act and includes a requirement that the animal has passed the public access test. The public access test is a test which the animal must pass to qualify as safe and effective in accessing public places and public transport. The test is not the same between the various states and territories[36].
[36] Ibid, page 601.
72. In South Australia the Board is authorised under section 21A of the DCM Act to accredit an assistance dog. The Board policy[37]was included in the documents provided to the Tribunal. A prescribed accreditation body may accredit a dog as an assistance dog and the accreditation remains in force unless it is revoked by the Board or the prescribing accreditation body, or if it is surrendered by the owner of the dog. This is subject to a condition that the handler and dog pass the Board’s public access test every two years in order to confirm that they still comply the with the requisite standards. In addition to the Board, the entities that constitute a prescribed accreditation body are the Royal Society for the Blind of South Australia Inc, the Guide Dogs Association Inc, Lions Hearing Dogs Inc and any other entity prescribed by the regulations.
[37] Exhibit C, A 2, page 389.
73. In order to meet the requirements for accreditation, the dog must have completed specific and rigorous obedience training with a qualified dog trainer. The dog trainer must be a person other than the Applicant. The Board authorises an approved assessor to conduct the public access test. Both the dog and the handler undergo the test. Once a dog is accredited it may accompany the person with a disability to areas that a dog would not ordinarily be allowed into, such areas including supermarkets, restaurants and public transport. The right of access to public places is known as “public access rights.”
74. The Applicant is responsible for the costs associated with training and accrediting the dog. The accreditation may be deferred by circumstances such as the dog’s ill-health or injury or change in temperament. The Board must maintain a register of accredited dogs that is to be readily available for public inspection without fee.
75. The NDIA offered a number of contentions for rejecting Ms Nottle’s application. They will be considered in turn.
(1)Ms Nottle is not entitled to receive NDIS funding for a dog that is not her hearing assistance dog
76. This is the NDIA’s first contention. According to this submission[38]:
… an NDIS participant is only to receive funding for those things (that is, “supports”) that will provide the participant with assistance connected to his or her disability. That is, it must be possible to conclude when viewed prospectively that the things for which funding is being sought will both (a) be capable of assisting the participant in the manner intended; and (b) be used for that purpose.
[38] Respondent’s Outline of Closing Submissions, paragraphs 131 – 135.
77. In this case, the evidence would need to show that when Ms Nottle purchased an eight-week-old puppy that it would become her hearing assistance dog after the method of training that she proposed.
78. The NDIA contends that the evidence does not enable the Tribunal to reach that conclusion. In support of that proposition the NDIA made several points.
(2)The NDIA submitted that the selection and training of assistance dogs is highly uncertain and not well understood
79. This assertion is overstated. The evidence is to the contrary. Clearly there is a national cohort of breeders, trainers, assessors, service organisations and practitioners with skills and experience in breeding, identification and training of assistance dogs. Some of the trainers have responsibility for conducting the public access tests.
(3)The NDIA submitted that experienced and professional assistance dog training organisations have a high rate of failure, often exceeding 50%
80. The evidence about rate of failure is inconclusive. However, it is not unreasonable to assert that about half of the assistance animals in training to become guide dogs or hearing assistance dogs may not succeed in passing the public access test. Before that point is reached, however, some of them might be re-directed or re-trained in some other area of in-home assistance with less stringent requirements which do not involve meeting the standards of the public access test.
81. Ms Waechter gave evidence about aspects of her experience when she was working at Guide Dogs SA/NT 10 years ago. The statistical aspect of her evidence was anecdotal only. Broadly, however, the evidence was useful to demonstrate that, then and probably now, a puppy would be placed with a puppy raiser away from the organisation at the age of eight weeks. Communication would continue on a regular basis between the organisation and the puppy raiser. Not all puppies would succeed in that part of the program. After 12 to 18 months, the formal training would commence. At Guide Dogs SA/NT there was about a 50% success rate at that time in completing the training and passing the public access test. Ms Waechter referred to some statistics from training organisations which suggest a 70 to 80% success rate. However, she mentioned that those statistics may relate to and include therapy assistance dogs which achieve a requisite standard for their purpose, however without a requirement of succeeding in the public access test.
82. Ms Nottle was asked about failure rates. She argued persuasively that the national and international statistics about failure rates have to be examined to determine exactly what it is that is being measured. Failure rates may depend upon the program and programs differ between organisations. Some organisations claim a 100% success rate.
83. Ms Nottle told the Tribunal that she has a reasonably high level of confidence that Eddie will pass the public access test. If she did not have that confidence, she would cease training him rather than devoting time and effort over two years in an endeavor that was not likely to succeed.
84. Clearly an absolute guarantee of success cannot be given by any trainer. As acknowledged by the ALHD[39]:
Although each dog goes through exacting assessment prior to delivery, very occasionally a dog and new recipient’s partnership doesn’t settle suitably. This could be for a range of unforeseeable reasons for instance a dog responds poorly to the physical elements of its new environment e.g. climate or the owner overestimated their ability or commitment to care for the dog they approved. In these cases the dog returns to ALHD for review and reassignment. The recipient, if they decide they still need an accredited Hearing Assistance Dog is offered an alternative dog when one becomes available.
[39] Exhibit C, R 12, page 555.
85. In the event of a failed match between the assistance dog and the handler under the ALHD training and placement regime, there will be delay in finding another suitable dog. As Ms Nottle speculated in evidence, such delay could be anything up to 2 years, although this is probably the longest anticipated waiting period. It would depend on the availability of another trained dog and the length of a waiting list of individuals seeking an assistance dog. When a dog becomes available, the next step includes pairing a dog to the handler without a guarantee of success in that part of the process. These considerations are relevant for Ms Nottle as her objective is to achieve a seamless transition between the retirement of Bunji and the commencement of Eddie. Clearly that is an objective which is sensible and worthwhile. It is likely to reduce two significant risks. It reduces the risk of delay, which could be a considerable lapse of time, between retirement of the existing assistance dog and the commencement of the new assistance dog. Such delay would have an impact on Ms Nottle’s activities of daily living, including getting to and from the workplace and personal safety. It also reduces the risk of a failed match between the new dog and the recipient, Ms Nottle.
(4)The NDIA submitted that, at the beginning of 2019, Ms Nottle had no experience in the identification and training of a puppy to become an assistance dog and her proposed methods for selection and training did not have a greater prospect of success than those used by experienced assistance dog training organisations
86. While she successfully trained Bunji to become her hearing assistance dog, the training commenced when he was an adult, not a puppy.
87. In relation to her experience and credentials for training, Professor McGreevy wrote in his report that Ms Nottle is[40]:
… likely to have advanced skills and to be able to create a positive training environment for a suitable canine candidate. She is likely to use husbandry and training methods that align with optimal dog welfare
[40] Exhibit C, R 8, page 530.
88. Professor McGreevy was asked to comment on the suitability of Eddie as an assistance dog in training and he wrote[41]:
I am impressed with Dr Nottle’s commitment to dog welfare, dog training and dog sports. Her accumulated expertise in this domain suggests that, despite all of the unforeseeable barriers to successful in-house training of an assistance dog, her training of a dog that lives with her and her current dog population would have a relatively low risk of failure.
[41] Ibid.
89. In evidence, Professor McGreevy spoke about the apparently nebulous field of study of “dogmanship” and the impact that the handler may have on the assistance dog in training. Realistically, it is a potential field of study still in its infancy. However, Professor McGreevy was clear that the ability of the handler to recognise behavioral traits of the dog and to get the best out of it may be an important part of successful training. For example, the handlers fine motor skills, awareness of their own impact on the dog and their ability to observe changes in the dog may contribute to the success of the training. In that sense, a handler’s vision may be more favorably placed to respond to cues and behaviors of the animal and training.
90. Ms Waechter told the Tribunal that there is a massive benefit in training the assistance dog when the owner/trainers have the capabilities and knowledge, which she believes Ms Nottle has, in understanding the behavior of dogs, the needs and routines of training, requirements around nutrition and where and when to seek assistance.
91. The Tribunal is satisfied that Ms Nottle has a high level both of academic and practical knowledge about the breeding, selection and training of assistance animals. Her knowledge and depth of understanding are coupled with her experience in owning, training and handling her current assistance dog, Bunji. She is well versed in matters relating to dog obedience, dog sports, and community events involving dogs, their handlers, trainers and owners. All of this was known to the NDIA early in the discussions with Ms Nottle about self-training a dog. In particular, the correspondence from Ms Bell on 18 February 2019, previously summarised, was timely and highly relevant in providing support for the efficacy of Ms Nottle’s proposals regarding breeding, owner co-training and costs.
(5)The NDIA submitted that the legislation does not permit the Tribunal to require retrospectively the funding of supports which were not at the relevant time capable of constituting reasonable and necessary supports
92. In evidence, Ms Nottle said that the NDIA had not offered any funding for a new hearing assistance dog. That is a different situation from one in which funding might be granted once milestones were reached. For example, if a suitable dog was identified, the NDIS could include funds for the next stage, or stages, with specified outcomes to be achieved before releasing funds for a subsequent stage. Funding might be accessed in accordance with the terms of the NDIS plan. This would have similarities to the assessment and planning process for items of requested assistive technology, which frequently include referrals to an assessor for an assessment about an item in question, assessment of differing specifications of the particular item, a report following assessment, subsequent assessment if requested, and reports about comparative costings. This process for assessment and recommendations of requested supports is commonplace in the NDIS planning processes for adaptive equipment and technology. More than that, it is an essential element of the planning tools.
93. In this review, the NDIA asserts that there is a particular characteristic regarding the funding of the training dog which is unique and critical. The first limb of the proposition appears to be that Bunji, not Eddie, is to be Ms Nottle’s hearing assistance dog[42]:
until such time as Eddie has completed his training and accreditation. It follows that, until that time, regardless of his ability to perform tasks for (Ms Nottle), Eddie is to remain as (her) companion dog. There is simply no evidence that (Ms Nottle) requires a companion dog to undertake activities, or that such a dog is effective and beneficial for person with a hearing impairment.
[42] Respondent’s Statement of Facts, Issues and Contentions, paragraph 52.
94. This is a misconception. The Tribunal is satisfied that Ms Nottle’s primary purpose in acquiring Eddie was to enable her to train him to the point of accreditation under the public access test and, soon thereafter, to become her hearing assistance dog in a seamless transition following Bunji’s retirement. Companionship was not the primary purpose in Ms Nottle’s acquisition of Eddie and it has not been the primary feature of the working relationship between owner and animal at any time. Ms Nottle has not sought funding under her NDIS plan for a companion dog. It seems that Eddie provides Ms Nottle with companionship and that is wholly unsurprising as an incidental, though beneficial, feature of the activity of training. However, the companionship is incidental to Eddies’ primary role as an assistance dog in training.
95. It is important to characterise correctly the role of Eddie in terms of a proposed support under the NDIS.
96. In McGarrigle v National Disability Insurance Agency, the term ‘support’ is described by Mortimer J as “a practical description of the means by which a person with disability is assisted. [43]” In National Disability Insurance Agency v WRMF, the full Federal Court of Australia stated that a participant’s supports: “are intended to accommodate an individual’s particular impairments and to assist that particular individual to be a participating member of the Australian community.[44]”
[43] [2017] FCA 306 at [88]
[44] [2020] FCAFC 79 at [141].
97. The NDIA submitted that a support must have “some inherent or existing capacity or property that renders it immediately capable of assisting the relevant participant. [45]” This means that, viewed prospectively, the funded support will be capable of assisting the participant and will be used for that purpose.
[45] Respondent’s Statement of Facts, Issues and Contentions, paragraph 37.
98. The Tribunal is satisfied that Ms Nottle’s acquisition of Eddie and the implementation of her planned process for training of Eddie to achieve accreditation as a hearing assistance animal constitutes, and is best characterised as, a present and continuing support. As a support under the NDIS, it is a current support in response to an immediate and current need, and not only to a need that will or might manifest itself in the future. The nature of the support reflects Ms Nottle’s hearing impairment, together with her professional capabilities. When accreditation is achieved, the form of the support will have a new focus given that Eddie will have moved on from an animal in preparation for work to an animal at work.
99. The Tribunal considers that, when viewed prospectively, the things for which funding is being sought will both be capable of assisting Ms Nottle in the manner intended; and will be used for that purpose
(6)NDIA contention: – the development of a hearing assistance dog which Ms Nottle proposes does not satisfy section 34 (1) (f) of the NDIS Act
100. This contention asserts that the NDIA is not the most appropriate provider of the “things in question” and it is not a more appropriate provider than the ALHD.
101. Section 34(1) of the NDIS Act provides that, in specifying the reasonable and necessary supports that will be funded under the scheme, the CEO must be satisfied that:
(f) 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 delivery or support services offered.
102. The Tribunal does not consider that the NDIA is the most appropriate provider of the assistance dog. In this review, the question is whether Ms Nottle should be provided with funds to train Eddie to the requisite standard, or whether the replacement for Bunji should be left to the processes available via another agency which, in this case, appears to be confined to ALHD.
103. Central to this NDIA contention were three questions.[46]
[46] Respondent’s Outline of Closing Submissions, paragraphs 136 – 147.
(a)What happens to the participant if the development attempt fails?
104. If a development attempt fails or falls short of expectations, as it might in any aspect of disability support, it would not be the first time this occurred and, in all likelihood, it would not be the last of myriad endeavours over decades in the development of disability assistive technology, aids ,equipment and adaptations to provide solutions which reduce the adverse, functional impact of a person’s impairment. A solution might only be effective for a finite period and may require further assessments and adjustments, particularly if the endeavour relates to a child with changing, developmental milestones.
105. The NDIS provides funding for assistive technology, aids, equipment, adaptions and home modifications. It does so thorough well-established procedures and practices which, broadly, involve assessments, recommendations, planning discussions and decisions. It has templates for assessments of assistive technology, proposed supports which relate to assistive technology needs assessments, complex home modifications, prosthetics and orthotics, nutrition support and continence issues[47]. At the outset of Ms Nottle’s request, the NDIS general assistive technology template was completed in considerable detail by an assessor, Mr Pearce, with a comprehensive report by Ms Bell (previously discussed) attached to the template form. It appears that the assessment was considered together with other reports, references and costing by an internal NDIA advisory team[48].
[47] Exhibit A, T 18, page 60.
[48] Exhibit A, T 20, page 69.
106. The planning cycle for participant supports under the NDIS legislation establishes a collaborative framework for the participant and the agency to engage in discussions about goals, supports and reviews of an individual plan. Within those planning discussions, a request, for example, for a replacement dog or some alternative could be made and would have to be considered in the event of a failed development attempt.
(b)What happens to the dog if the development attempt fails? Who is to be responsible for its ongoing maintenance; where is it to live, and with whom; and who is to pay for it?
107. It is reasonable to expect that the owner of the dog carries the responsibility for the maintenance and welfare of the dog. The NDIA acknowledged that Ms Nottle has not indicated that she would seek repayment of expenses if Eddie did not achieve accreditation. Indeed, the Tribunal’s impression of Ms Nottle’s commitment is that she would maintain Eddie as a companion dog in these circumstances. Based on evidence which Ms Waechter gave, it is also conceivable that Eddie might become eligible and available for a significant and productive role as a trained assistance animal to a person who does not require the animal for public access.
(c) What happens to the money already spent on the failed dog? If the dog is being funded under the NDIS, and it does not become a reasonable and necessary support, should the funding be repaid? If so, how? Under what statutory mechanism can that occur?
108. The NDIA will have its own processes to address this scenario. The Tribunal has not been provided with any evidence regarding those processes when a funded assessment of assistive technology results in provision of equipment that is not fit for purpose. It may well be that those processes, if any, would be applicable in identical or another form in relation to a “failed dog”.
109. The final step in the NDIA’s contention relates to ALHD, which is correctly described as a dedicated provider of hearing assistance dogs, with a certification by Assistance Dogs International and experience in sourcing, maintaining and training dogs and re-homing them if they do not meet accreditation[49].
[49] Respondent’s Outline of Closing Submissions, paragraphs 144 – 147.
110. The essence of this last proposition is that it is Ms Nottle who chooses not to comply with the conditions upon which ALHD’s assistance is appropriately available. The NDIA correctly asserts that participants may choose not to receive supports from other organisations, but it does not follow that they are entitled to obtain NDIS funding of those supports elsewhere, simply to avoid disliked conditions and to impose their own preferences. Otherwise it would be the participant and not the CEO of the NDIA (or the Tribunal on review) who determines the application of s 34(1) (f) of the NDIS Act.
111. Inherent in the NDIA proposition is the suggestion that ALHD is a more appropriate provider because ALHD is more experienced and qualified than Ms Nottle to train an assistance dog to accreditation, in this case Eddie, to become an assistance dog and that she has not shown that her proposed training methods have a greater prospect of success.
112. The Tribunal does not consider that ALHD is a more appropriate trainer of Eddie than Ms Nottle[50]. This does not reflect adversely in any way upon the expertise and credentials of ALHD. It is, nonetheless, an acknowledgement of Ms Nottle’s circumstances which are unique to her and to her proposal for NDIS funding for training of Eddie.
[50] Ibid, paragraph 147.
113. As already indicated, the Tribunal is satisfied by the abundance of evidence which affirms Ms Nottle’s capabilities to select and to provide optimal training for a hearing assistance dog. The Tribunal accepts that it is reasonable for Ms Nottle to aim for a seamless transition from Bunji to Eddie. Such a transition is not possible through ALHD and there would be a period during which Ms Nottle would potentially be left without a hearing assistance dog. Should such a situation arise, it would potentially have a negative impact for her at work, at home, and in relation to her safety and well-being and in various activities in the community. Whether or not that period would be a matter of weeks or months is unclear. However, that lack of certainty simply adds to the risk which Ms Nottle is keen to minimise by not opting in to the AHLD program.
114. Ms Nottle’s determination about selecting and training her hearing assistance dog is not borne out of stubbornness or from a desire to be confrontational. She is not trying to impose her will upon the NDIS so that she, rather than the CEO of the NDIA, becomes the ultimate decision maker. She has collaborated in the planning process by providing comprehensive details of her proposals and she has sourced numerous references, reports and material to support her proposal. Her reason for declining the support from the ALHD stems from the organisation’s requirement that there cannot be a second dog in the house. It is an open question which attracts competing viewpoints.
115. It is not the organisational requirement of a service provider that determines whether the support is most appropriately funded or provided through the NDIS or through other systems of service deliver. Ms Nottle’s unique expertise is properly to be taken into account when undertaking that balancing process. Having regard to the evidence, there are sound arguments for and against that organisational requirement. In this matter, the evidence available to the Tribunal suggests there are sound reasons why the presence of a second dog can be, and in the circumstances of this matter, is beneficial to the training of the new dog Eddie; and why the organisational requirement of the ALHD is not best in circumstances where Ms Nottle’s expertise needs to be considered. The organisational requirement might be well understood when dealing with a recipient who is without expertise in dog training. However, that is not the case in this matter.
116. Ms Nottle is aware of the competing views and proposes sensibly to give them due consideration as the training unfolds. It also needs to be recalled that her method of training is a collaborative exercise which involves seeking advice and support from registered dog trainers. In a practical sense, she coordinates and implements training which is guided and monitored by other trainers with whom she engages on a professional basis.
(7)NDIA contention – The funding which Ms Nottle seeks is prohibited because it would duplicate a support already funded
117. This contention advances the proposition that Ms Nottle already has a trained assistance dog, Bunji, with public access rights. The NDIA does not accept that purchasing, maintaining and training Eddie is “support” for the purposes of the NDIS Act. However, if the Tribunal finds to the contrary then, it is argued, Eddie is a “support.”
118. The NDIA contentions struggled at various points with the notion of Eddie as a companion dog, or as an assistance dog in training or, ultimately, as a hearing assistance dog. If Eddie is to be properly classified as the latter, then this would result in a duplication of other supports which is contrary to rule 5.1(c) of the Support Rules as it duplicates funding for already provided for Bunji. If Eddie is deemed to be merely a companion dog, or a partially trained dog, none of the prerequisites for “support” are met.
119. The correct view is that the reasonable and necessary support that will be funded, comprises Ms Nottle’s selection, maintenance and training of a dog to accreditation so that the dog will provide her with assistance in addressing the effects of her hearing impairment. That includes a seamless transition to a new assistance dog at the end of the working life of her current, hearing assistance dog enabling the required assistance to continue uninterrupted.
Reasonable and necessary supports
120. The relevant provisions of the NDIS Act have been set out above.
121. It is helpful to recite a passage from the Full Court of the Federal Court in National Disability Insurance Agency v WRMF[51]:
... there is no doubt that the contextual use of the phrase [“reasonable and necessary supports”] in this Act links it to public funding to be provided to a participant. In that context, the phrase connotes supports which meet a threshold which justifies — by reference to the context, objects and guiding principles of the Act and the facts of the case — the expenditure of public funds for that support, for a particular participant. As we have already explained, the phrase also needs to be understood taking into account what has qualified a person as a participant, and the links between a person’s impairment and their full participation in the community, in the same variety of ways as persons without a disability might choose to participate. It is not accidental, in our opinion, that Parliament has chosen the term ‘participant’ to describe individuals who will receive funded support: the choice of that term reinforces, as we have sought to explain, that the driving objective of this Act is the holistic, improved and increased participation by persons with disability in the life of their communities, and in life itself.
[51] [2020] FCAFC 79 at [151].
122. The evidence confirms that Ms Nottle is an active member of the community who takes responsibility for Bunji and seeks to be responsible for training Eddie rather than relying on others to do the work and provide her with a finished product, which in this case would be a trained dog which might or might not achieve the final, necessary external accreditation. Ms Nottle prefers to take responsibility for the coordination of Eddie’s training and critical aspects of its implementation. It is her commitment to a continuing activity, day and night, to bring Eddie to a point where he contributes significantly to her independence and quality of life, while also involving Eddie in the life of Ms Nottle’s work colleagues, associates and friends as an active assistance animal in the community. As the owner, handler and trainer she is the recipient of the support, but also the driver of that support.
123. Consistently with its contentions regarding the threshold issue, the NDIA contends that the purchase, maintenance and training of a puppy, Eddie, does not satisfy the requirements of ss 34 (1) (b) and 34 (1) (d) of the NDIS Act[52].
[52] Respondent’s Outline of Closing Submissions, paragraph 16.
124. All of the criteria in s 34 (1) must be satisfied in order for a reasonable and necessary support to be funded.
The support will assist the participant to pursue the goals, objectives and aspirations in the participant’s statement of goals and aspirations: s 34 (1) (a) of the NDIS Act
125. Ms Nottle’s short term goals in her NDIS plan provide for maintaining her levels of independence by accessing maintenance for hearing aids, maintaining her hearing assistance dog, and accessing support for the timely purchase and training of a new assistance dog[53]. It is clear on the evidence that this requirement is satisfied.
The support will assist the participant to undertake activities, to facilitate the participant’s social and economic participation: s 34 (1) (b) of the NDIS Act
[53] Exhibit A, T 27, page 105.
126. The purpose of having a hearing assistance animal is to facilitate and enhance Ms Nottle’s activities at work and in the community. This requirement is satisfied.
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: s 34 (1) (c) of the NDIS Act
127. Rule 3.1 of the Support Rules, provides further guidance as follows:
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) whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides;
(f) whether the support will increase the participants 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)
128. Correspondence from the ALHD suggests that their costs for training and delivery of a hearing assistance dog is approximately $37,000[54]. The average cost may depend on the overall number of dogs in the program at any particular time and that number will reflect the need, and presumably, the number of requests for a dog at that time. The training process depends on the age and source of dog at the time of procurement. The training comprises two streams: one of them is sound training and the other is public access training.
[54] Exhibit C, R 12, page 555.
129. The correspondence from Ms Bell provided estimated costings for owner/training (or co-training) of $14,928.93 for acquisition and training up to the public access test certification for the first two years, and $5,044 for care, training and supports.[55]
[55] Exhibit A, T 13, page 38.
130. The Operational Guideline notes that the La Trobe University completed a study regarding the training of assistance dogs. Based on the findings from the study the Operational Guideline states that the NDIA will generally not provide funding for a dog before it has become a qualified assistance animal. If the Operational Guideline applied to hearing assistance dogs it would follow generally that the NDIA would not provide funding prior to accreditation of the dog. It appears that this approach would apply both to owner/trainer and training by a service provider. In the case of ALHD, the NDIA could avoid incurring the cost of approximately $37,000.
131. Extracts from the La Trobe University’s comprehensive study were included in the documents provided to the Tribunal. The final report by the University was provided to the NDIA[56]. It includes recommended definitions of various types of assistance animals in discussions about those categories of animal. Specifically, it makes reference to hearing assistance animals and it includes discussion about the training standards for them. In the definition in the Operational Guideline, the category of animals to which the guideline applies makes no reference to hearing assistance dogs. Specifically, the guideline refers to dog guides, companion animals, emotional support animals, facility animals, medical alert animals, therapy animals and visitation animals. The dog guide is defined as one that is specifically trained to support people with vision impairment or blindness.
[56] Exhibit C, R 3, page 414.
132. The lack of any reference to hearing assistance dogs in the Operational Guideline is significant. It seems to be an omission by design and not by oversight. In any event, and in the absence of any explanation about the omission, it is reasonable to conclude that the guideline does not apply to hearing assistance dogs. The Tribunal asked counsel for the NDIA to comment on the omission. However, counsel’s response, namely that: “the lack of specific reference to a hearing assistance dog… does not have any significance to the issues which are to be determined by this Tribunal”[57] was based on the underlying proposition that the Tribunal should accept the NDIA’s threshold contentions about the correct characterisation of the requested support. Those threshold contentions, as already indicated, are not accepted.
[57] Respondent’s Outline of Closing Submissions, paragraph 64.
133. The costings provided by Ms Bell are within the range of the average costings of the ALHD. In consideration of the matters specified in the rule 3.1 of the Support Rules, the Tribunal is satisfied that the requirement of value for money is met.
The support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice: s 34 (1) (d) of the NDIS Act
134. Ms Nottle has considerable knowledge and experience in the training and maintenance of hearing assistance animals. She is aware of contemporary best practice in the field. To the extent that there is a risk that Eddie may not pass the public access test, one of the guiding principles under the NDIS Act is[58]:
People with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of the goals and the planning and delivery of their supports.
The Tribunal is satisfied that the support is likely to be effective and beneficial for Ms Nottle.
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: S 34 (1) (e) of the NDIA Act
[58] NDIS Act, Subsection 4 (4).
135. This requirement is satisfied. For all participants, rule 3.4(c) of the Support Rules refers to “the desirability of supporting and developing the potential contributions of informal supports and networks within their communities.” Ms Nottle’s role in training Eddie factors in the various networks and supports which she has in areas such as dog clubs, associations and community networks.
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 delivery or support services offered (i) as part of a universal service obligation; or (ii) in accordance with the reasonable adjustments required under a law dealing with discrimination on the basis of disability: S 34 (1) (f) of the NDIS Act.
136. For the reasons set out in paragraphs 121 – 135 above, the Tribunal is satisfied that this requirement is met.
CONCLUSION
137. For the reasons which have been set out, the Tribunal finds that the acquisition, training, and maintenance of an assistance dog, Eddie, is a reasonable and necessary support within the meaning of s 34 (1) and related provisions of the NDIS Act.
138. The NDIA contends that the Tribunal does not have jurisdiction to decide whether amounts which Ms Nottle has spent on Eddie should be reimbursed. That proposition appears to be correct.
139. The Tribunal also agrees with the NDIA’s proposition that the question to be asked is one that must be asked prospectively. With the benefit of hindsight, it might be revealed that the purchase of an item had a beneficial outcome. Indeed, while there is ample evidence to demonstrate that Eddie has made good and consistent progress in his training, the position at the commencement of the plan was somewhat different, that is, as the NDIA asserts, there was a chance of success which is less than an assurance of success.
DECISION
140. The reviewable decision made by the NDIA on 12 September 2019 is set aside pursuant to s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth). The matter is remitted to the NDIA for reconsideration in accordance with the direction that the funding for acquisition, training, and maintenance of the hearing assistance dog, Eddie, is a reasonable and necessary support in relation to the statement of supports in Ms Nottle’s plan dated 15 April 2020.
| I certify that the preceding one hundred and thirty-nine (140) paragraphs are a true copy of the reasons for the decision herein of Senior Member B Illingworth and Member I Thompson |
...............[SGND]......................
Associate
Date of hearing: | 29 and 30 October 2020 |
Applicant: | In person |
Counsel for the Respondent: | Ms Grace Keesing |
Dated: 09 April 2021
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