NVWC and National Disability Insurance Agency

[2019] AATA 2506

NVWC and National Disability Insurance Agency [2019] AATA 2506 (13 August 2019)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number:           2018/2660

Re:NVWC

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:R Cameron, Senior Member

Date:13 August 2019  

Place:Melbourne

The Tribunal varies the decision under review dated 30 January 2018  to include in the plan, approved by the National Disability Insurance Scheme on 15 December 2017, a ‘support area’ for ‘assistive technology’, with a budget of $750.00 for repairs and maintenance of the Applicant’s mobility scooter.

[sgd]........................................................................

R Cameron, Senior Member

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – mobility scooter – assistive technology – reasonable and necessary support – maintenance and repair – decision varied

Legislation

National Disability Insurance Scheme Act 2013

REASONS FOR DECISION

R Cameron, Senior Member

13 August 2019

INTRODUCTION

1. The Applicant seeks review of a decision made by the Respondent on 30 January 2018 (“the decision”) under section 100 of the National Disability Insurance Scheme Act 2013 (“the Act”), which confirmed a previous decision not to include funding for the repairs and maintenance of a mobility scooter used by them (the Applicant has requested to be referred to by a gender-neutral pronoun).

2. The Applicant seeks a decision that they are eligible to be funded for necessary maintenance of and repairs  to their mobility scooter:

   (a)as required, and

   (b)as recommended by suitably qualified allied health practitioners; and

   (c)in accordance with the Respondent’s assistive technology repairs at the relevant time.[1]

   [1] This is taken from paragraph 7 of the Applicant’s Submissions filed with the Tribunal on 5 June 2019.

3. The Respondent now agrees that funding of $750.00 per year should be included in the statement of participant supports for the Applicant for repairs to and maintenance of the mobility scooter.[2]

   [2] See paragraphs 1 and 19 of the Respondent's Submissions filed on 5 June 2019.

   RELEVANT FACTS

4. The Applicant suffers from a range of conditions and has done so for some time. It is not necessary to reiterate those conditions in these reasons  as they are not disputed. The conditions are adequately outlined and considered in the material in evidence before the Tribunal (which includes several reports from treating doctors and other healthcare professionals) and the Applicant’s Statement of Facts and Contentions[3].

   [3] Paragraph 4 of the Applicant’s Statement of Facts, Issues and Contentions is referred to for details of the conditions experienced by the Applicant.

5. There is limited evidence before the Tribunal concerning the mobility scooter. However, it does indicate, to the satisfaction of the Tribunal, that because of the conditions from which they suffer, the Applicant is heavily reliant upon a mobility scooter to enable them to attend appointments (including medical appointments), interact socially and undertake regular day-to-day journeys that are a necessary part of their life. The mobility scooter was recommended by an occupational therapist.[4] This fact is not in dispute.

   [4] A report from Robert Haughton Occupational Therapist of 19 May 2016 (document T 11 of the T documents) supported an application made by them for a mobility scooter to be supplied through the State Wide Equipment program ("SWEP") for which they were apparently eligible. Mr. Haughton in his report records that the Applicant has a history of falls due to their poor balance and limited walking capacity. He also noted that they are unlikely to improve in their level of function. The report was prepared by him after a home visit assessment of the Applicant on the same day.

6. On 22 March 2017 the Applicant was granted access to the National Disability Insurance Scheme (“NDIS”).

7. A plan for the Applicant was approved under the NDIS on 9 August 2017 (“the First Plan”),   which included a provision  of $750.00 for repairs to and maintenance of the mobility scooter used by the Applicant; which was described as disability specific equipment.

8. A Second Plan was approved under the NDIS for the Applicant on 15 December 2017 (“the Second Plan”). The statement of participant supports in the Second Plan, unlike the First Plan, did not make a provision for repairs to and maintenance of the mobility scooter[5].

   [5] In the decision (document T 31 of the T documents) the Delegate of the Chief Executive Officer explained the reasons why she had decided not to change the decision to decline funding for the mobility scooter. Those reasons will not be repeated in full, but essentially it was contended that none of the Applicant’s disabilities identified in those reasons cause mobility issues that require specialist equipment such as a mobility scooter. This conclusion has been contested by the Applicant throughout.

9. The Applicant sought an internal review of the statement of participant supports in the Second Plan (“the internal review”). On 30 January 2018 the internal review was concluded and, amongst other things, a decision made not to include a provision for repairs and maintenance of the mobility scooter used by the Applicant. As noted previously, this is the decision of which the Applicant seeks review in this Tribunal.[6]

   [6] It should be noted that the scope of this application for review did include other issues in dispute that were resolved by agreement between the parties after commencement of this application. The “Terms of Agreement as to Decision” were signed by the parties on 29 January 2019 and subsequently approved by the Tribunal.  The agreement included funding for therapies provided by a psychologist and other allied health care professionals. It is not necessary to further canvass these matters in these reasons.

   CONSIDERATION

10. Since the commencement of this proceeding, the Respondent has conceded that funding for repairs and maintenance of the Applicant’s mobility scooter of $750.00 is a reasonable and necessary support within the meaning of section 34 of the Act.[7] It contends that the relevant task for the Tribunal in reviewing the decision is to assess whether the requested support, the funding of repairs to and maintenance for the mobility scooter, is reasonable and necessary in accordance with the criteria contained in section 34(1) of the Act. If so satisfied, the decision should be varied to include the requested support.

    [7] This concession was made in an email forwarded by the Respondent to the Tribunal and the Applicant's representative on 2 May 2019 and in a submission filed with the Tribunal on 5 June 2019.

11. The Respondent contends that the parties are in agreement that funding for repairs and maintenance of the Applicant’s mobility scooter of $750.00 is reasonable and necessary support within the meaning of section 34(1) of the Act.

12. The Tribunal does not have before it any material in evidence that this is quite so. The materials before the Tribunal show that the Applicant contends that they are entitled to funding for necessary maintenance and repairs of their mobility scooter. However, nowhere in their material do they contend or accept that the sum of $750.00 is necessary for such maintenance and repairs. They do not specify a figure, but rather contend that such funding should be as required and recommended by those suitably qualified, at the time such repairs and maintenance are necessary.

13. There is no evidence before the Tribunal establishing what the cost of repairs and maintenance for the Applicant’s mobility scooter are likely to be each year.

14. In addition, there is no evidence of how long the Applicant has used the mobility scooter[8]. It would have assisted the Tribunal if there had been evidence of what costs they have incurred each year for maintenance of and repairs to the mobility scooter.

    [8] At best the Tribunal can infer that the application for a mobility scooter referred to in the report of             Mr. Haughton in May 2016, referred to previously, was successful. Therefore, most likely the Applicant has had a mobility scooter for approximately three years.

15. Plans for participants in the NDIS customarily specify a budget for each category of reasonable and necessary supports identified therein. Indeed, in the First and Second Plan this format has been adopted. Such a format is consistent with the requirements of the Act and in particular “Part 2 - Participants’ plans”, “Division 1 - Principles relating to plans” and “Division 2 - Preparing Participants plans”. For instance, in the Applicant’s First Plan reasonable and necessary supports budgets were specifically identified for assistive technology, improved daily living, transport and core supports. The Tribunal sees no reason to depart from this approach.

16. The Applicant, in  their Statement of Facts, Issues and Contentions and Submissions, did not take issue with or  challenge the contention of the Respondent that the sum of $750.00 for the repairs and maintenance of their mobility scooter was reasonable and necessary support. Rather, as observed earlier they sought funding as required.

17. The Tribunal on the material before it is satisfied that given the disabilities of the Applicant, each of the matters enumerated in section 34(1) of the Act are satisfied[9] if a budget is fixed for assistive technology of $750.00, for repairs and maintenance of their mobility scooter. Proper repairs and maintenance of a mobility scooter are necessary to enable them to pursue the goals, objectives and aspirations included in their plan. Further, it will assist them to undertake activities to facilitate social and economic participation which would otherwise be restricted or not possible without access to a properly maintained mobility scooter. Given the concessions of the Respondent, the support would appear to represent value for money and, in the absence of any evidence of how much is required each year to repair and maintain the mobility scooter, such a budget should be allowed.

    [9] The Tribunal is also satisfied of the section 34 (1) requirements given the concessions made by the Respondent referred to previously in these reasons.

    CONCLUSION AND DECISION

18. Accordingly, the Tribunal considers that the correct and preferable decision is to vary the decision of the Delegate of the Chief Executive Officer made on 30 January 2018. The decision is varied to include, in the Second Plan, a “support area” for “assistive technology”, with a budget of $750.00 for repairs to and maintenance of the Applicant’s mobility scooter.

I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member

[sgd]........................................................................

Associate

Dated: 13 August 2019

Date of hearing on the papers:	11 June 2019
Advocate for the Applicant:	Naomi Anderson
Organisation for the Applicant:	Vilamanta Disability Rights Legal Service Inc.
Advocate for the Respondent:	Oliver Young