O’Hearn and National Disability Insurance Agency - [2023] AATA 4141

O’Hearn and National Disability Insurance Agency [2023] AATA 4141 (15 December 2023)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2022/9680
Re:Judith O’Hearn
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Member W Frost
Date:15 December 2023
Place:Canberra

The Tribunal sets aside the decision under review pursuant to subsection 43(1)(c) of the Administrative Appeals Tribunal Act 1975 and makes a decision, in substitution for the decision so set aside, to approve a statement of participant supports that specifies:
(a)the Applicant’s National Disability Scheme (NDIS) plan is to be self-managed;
(b)the date by which the CEO of the Respondent must reassess the plan pursuant to Division 4 of the National Disability Insurance Scheme Act 2013 is 12 months from the date of this decision; and
(c)the reasonable and necessary supports that will be funded under the NDIS are as follows:

Core supports:

Low-cost AT - Communication or Cognitive Support – up to an amount of $1,500;

Low-cost AT - Personal Care And Safety – up to an amount of $1,300;

Low-cost AT - Hearing Related AT – up to an amount of $100;

Pool hire fees for twice weekly physiotherapy sessions;

Continence aids – up to an amount of $16,717.49;

House And/or Yard Maintenance - 2 hours per fortnight (total of 52 hours per year);

Assistance With Self-Care Activities - Standard - Weekday Daytime – 6 hours per week, for 52 weeks (total of 312 hours per year);

Assistance with Personal Domestic Activities - 4 hours per week for 52 weeks (total of 208 hours per year);

Medium Term Accommodation – 21 days;

Access Community Social And Rec Activities - Weekday Daytime – 140 hours, consisting of:
xi.2 hours per week for 52 weeks (total of 104 hours per year);
xii.6 hours per week for 6 weeks (total of 36 hours); and

Transport funding (level 3) to be paid into Ms O'Hearn's nominated bank account on a fortnightly basis;

Capacity building supports:

Assessment Recommendation Therapy or Training – Physiotherapist – 244 hours per year, consisting of:
ii.156 hours of physiotherapy to be used flexibly in land and water-based environments;
iii.52 hours for physiotherapist travel;
iv.30 hours at the physiotherapy rate for a 6-week intensive rehabilitation period;
v.6 hours for report writing;

Provision of Hearing Services by an Audiologist – 6 hours; and

Support Coordination Level 2: Coordination of Supports 36 hours per year;

Capital supports:

The bathroom modifications that are the subject of the quote from FTCI Pty Ltd dated 18 July 2023;

Repairs and Maintenance – Wheeled Mobility Major (quote required);

Minor repairs and maintenance of Assistive technology equipment – up to an amount of $500;

Postural Support Using Air Floatation or Automated Pressure Management – up to an amount of $1,220.21;

The vehicle modifications that are the subject of the quote from Problem Management Engineering Pty Ltd dated 27 February 2023;

Hearing aids – up to an amount of $5,060.00;

Building Works Project Management;

The following kitchen modifications:

cook top with hob2hood - up to an amount of $3,299.00;

oven with telescopic rails – up to an amount of $3,199.00; and

the building modifications that are the subject of the quote from FTCI Pty Ltd dated 18 July 2023; and

The carport modifications that are the subject of the quote from Leadercrete dated 26 January 2023.
(d)Pursuant to subsection 43(6) of the Administrative Appeals Tribunal Act 1975, the Tribunal’s decision is to take effect on the day that is 21 days after the day of the Tribunal’s decision.

..........................[SGD]...............................
Member W Frost
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – reasonable and necessary supports – where the Applicant is an accepted participant of the National Disability Insurance Scheme – decision under review set aside
Legislation
Administrative Appeals Tribunal Act1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013
Cases
McCutcheon and National Disability Insurance Agency [2015] AATA 624
McGarrigle v National Disability Insurance Agency [2017] FCA 308
SZWV and National Disability Insurance Agency [2022] AATA 2973
REASONS FOR DECISION
Member W Frost
15 December 2023
INTRODUCTION

The Applicant, Judith O’Hearn AO, is a participant in the National Disability Insurance Scheme (NDIS) and has impairments due to incomplete paraplegia at the T5 level of the spine.
In 2022, the National Disability Insurance Agency (NDIA) approved a statement of participant supports for Ms O’Hearn under the National Disability Insurance Scheme Act 2013 (NDIS Act). Later that year, Ms O’Hearn applied to the Tribunal for review of the NDIA’s subsequent affirmation of that decision, which had declined to include some of her requested supports in the NDIS plan. Ultimately, the remaining support in dispute in this proceeding was Ms O’Hearn’s requested bathroom modification, including installation of a custom bathtub.
The Tribunal has considered all documents filed in this proceeding, including those provided pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act), the parties’ Joint Tender Bundle and Ms O’Hearn’s Supplementary Tender Bundle, together with the parties’ submissions. For the following reasons, the Tribunal sets aside the decision under review and approves the inclusion of all of Ms O’Hearn’s requested supports in her statement of participant of supports, including the bathroom modification.
ISSUE
The issue for determination by the Tribunal in this proceeding was whether the support requested by Ms O’Hearn to be funded by the NDIA, being a bathroom modification, is ‘reasonable and necessary’, pursuant to section 34 of the NDIS Act, for inclusion in the statement of participant supports in her NDIS plan.
BACKGROUND
Ms O’Hearn is 56 years old and lives with her family in the Northern Territory.[1]
[1] Exhibit 1, page 140.
In 1993, Ms O’Hearn was diagnosed with incomplete paraplegia at T5 level following surgery to remove a cyst from her spine and has from that time relied on a manual wheelchair to mobilise.[2] Ms O’Hearn has also been diagnosed with bilateral arthritis of the shoulders and a bilateral hearing impairment managed with hearing aids.[3]
[2] Ibid., pages 21 and 1295.
[3] Ibid. See also Exhibit 1, pages 95-122.
Ms O’Hearn has worked full-time for the Northern Territory Government for 35 years and is currently a Career Practitioner with a senior secondary school.[4] Among other achievements, Ms O’Hearn competed at the Sydney Paralympics in 2000.[5]
[4] Ibid., pages 1295-1296.
[5] Ibid., page 1295.
On 6 September 2022, the NDIA approved a statement of participant supports for Ms O’Hearn in a plan pursuant to subsection 33(2) of the NDIS Act.
On 21 November 2022, the NDIA made a decision under subsection 100(6) of the NDIS Act affirming its decision of 6 September 2022.[6] The NDIA declined, among other requested supports, home modifications to the bathroom, kitchen, pool and pathways around Ms O’Hearn’s home.[7]
[6] Ibid., pages 13-19.
[7] Ibid.
On 24 November 2022, Ms O’Hearn made an application to the Tribunal for review of the NDIA’s decision.[8] On 31 March 2023, Ms O’Hearn confirmed the particular supports she requested be approved for her NDIS plan, relevantly including modifications to the main bathroom of the home entailing removal of the existing bath and installation of a custom bath for her use and increased support for physiotherapy and hydrotherapy.
[8] Ibid., pages 4-12.
On 14 September 2023, under subsection 42D(1) of the AAT Act, the Tribunal remitted the reviewable decision to the NDIA.
On 18 September 2023, the NDIA set aside the reviewable decision and, in substitution for that decision, made a new decision which approved Ms O’Hearn’s current NDIS plan. That decision changed the statement of participant supports and provided total funded supports for Ms O’Hearn in the amount of $187,604.31.[9] Therefore, pursuant to subsection 42D(4)(a) of the AAT Act, the decision under review before the Tribunal became the NDIA’s decision of 18 September 2023.
[9] Ibid., pages 139-153.
Accordingly, during the course of this proceeding, Ms O’Hearn has withdrawn her request for certain supports and reached agreement with the NDIA regarding other supports. As a result, at the Tribunal hearing on 12 October 2023, the following supports remained in dispute between the parties:
(a)the bathroom modification (including removal of the existing bath, installation of a custom bath containing a transfer bench and steps into the bath, and installation of a shower screen);
(b)medium term accommodation for the period of time required for the bathroom modification and other works to be undertaken;
(c)an increase to physiotherapy support funding (to allow for a total of 52 hours of physiotherapy support per year, instead of 38 hours of therapy assistant support); and
(d)an increase to hydrotherapy support funding (to allow for a total of 104 hours of hydrotherapy support per year, instead of 48 hours).
At the conclusion of the Tribunal hearing in October 2023, directions were made for the parties to provide written closing submissions. The NDIA’s closing submissions dated 2 November 2023 confirmed that it had ‘largely accepted’ Ms O’Hearn’s position in relation to the requested physiotherapy and hydrotherapy supports and that these should be added to her NDIS plan. As a result, on 14 December 2023, the parties provided the Tribunal with terms of agreement pursuant to subsection 42C(1) of the AAT Act with an agreed draft order approving these supports and all of Ms O’Hearn’s current supports under her NDIS plan. Accordingly, the sole issue in dispute that remained before the Tribunal following the receipt of the parties’ closing submissions and the terms of agreement was the requested bathroom modification. The Tribunal addresses that issue in its reasons below.
LEGISLATIVE INSTRUMENTS & POLICY
The NDIS Act
The objects of the NDIS Act, set out in section 3, include to:
(a) in conjunction with other laws, give effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12); and
(b) provide for the National Disability Insurance Scheme in Australia; and
(c) support the independence and social and economic participation of people with disability; and
(d) provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme; and
(e) enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and
(f) facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability;
(g) promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community; and
(ga) protect and prevent people with disability from experiencing harm arising from poor quality or unsafe supports or services provided under the National Disability Insurance Scheme; and
(h) raise community awareness of the issues that affect the social and economic participation of people with disability, and facilitate greater community inclusion of people with disability…
Subsection3(3) of the NDIS Act provides that, in giving effect to the objects of the NDIS Act, regard is to be had to the need to ensure the financial sustainability of the NDIS and to 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 NDIS.
Section 4 of the NDIS Act sets out the general principles guiding actions under the legislation, including that:
(1)People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development.
(2)People with disability should be supported to participate in and contribute to social and economic life.
(3)People with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime.
(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.
…
(8)People with disability have the same right as other members of Australian society to be able to determine their own best interests, including the right to exercise choice and control, and to engage as equal partners in decisions that will affect their lives.
…
(10)People with disability should have their privacy and dignity respected.
(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.
Subsection 4(17) of the NDIS Act also provides that:
It is the intention of the Parliament that the Ministerial Council, the Minister, the Board, the CEO, the Commissioner and any other person or body is to perform functions and exercise powers under this Act in accordance with these principles, having regard to the need to ensure the financial sustainability of the National Disability Insurance Scheme.
Section 17A of the NDIS Act sets out additional principles which must be had regard to relating to the participation of people with disability.
Under section 9 of the NDIS Act, ‘participant’ means ‘a person who is a participant in the National Disability Insurance Scheme (see sections 28, 29, and 30)’. Relevantly for these proceedings, subsection 28(1) provides that a person becomes a participant in the NDIS ‘on the day the CEO [of the NDIA] decides that the person meets the access criteria’. Section 21 of the NDIS Act provides that a person meets the access criteria when, relevantly, they meet either section 24, being the disability requirements, or section 25, being the early intervention requirements.
Section 32 of the NDIS Act provides that if a person becomes a participant in the NDIS, the CEO of the NDIA must facilitate the preparation of the participant’s plan and this is to occur within 21 days of the person becoming an NDIS participant. Subsection 33(2)(b) of the NDIS Act requires a participant’s plan to include a statement, being the ‘statement of participant supports’, prepared with the participant and approved by the CEO of the NDIA, that specifies ‘the reasonable and necessary supports (if any) that will be funded’ under the NDIS.
Subsection 33(5) of the NDIS Act stipulates that in deciding whether or not to approve a statement of participant supports under subsection (2), the CEO of the NDIA or, in these proceedings, the Tribunal, must:
(a) have regard to the participant’s statement of goals and aspirations; and
(b) have regard to relevant assessments conducted in relation to the participant; and
(c) be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and
(d) apply the National Disability Insurance Scheme rules (if any) made for the purposes of section 35; and
(e) have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and
(f) have regard to the operation and effectiveness of any previous plans of the participant.
The criteria in section 34 of the NDIS Act set out what supports will be provided to an NDIS participant, as follows:
(1) For the purposes of specifying, in a statement of participant supports, the general
supports that will be provided, and the reasonable and necessary supports that will
be funded, the CEO must be satisfied of all of the following in relation to the
funding or provision of each such support:
(a) the support will assist the participant to pursue the goals, objectives and
aspirations included 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 it is reasonable
to expect families, carers, informal networks and the community to provide;
(f) the support is most appropriately funded or provided through the National Disability Insurance Scheme, 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 reasonable adjustments required under a law dealing with discrimination on the basis of disability.
In McGarrigle v National Disability Insurance Agency [2017] FCA 308 (McGarrigle), Mortimer J (as her Honour then was) observed that:[10]
Although the phrase “reasonable and necessary supports” is used throughout the legislative scheme, including in the objects and principles provisions, it is not defined. Its meaning can be derived from the context in which it is used, especially in my opinion s 4(11), which sets out what reasonable and necessary supports should enable and empower people with a disability to do, read with s 14 which sets out the purposes for which funding for reasonable and necessary supports is provided.
...
The rules are legislative instruments to be made by the Minister: see s 209. Section 209, sub-paras (4) to (7) constrain the rule-making power to preserve the federal characteristics of the NDIS. The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (the Rules) are an important element of the legislative scheme, introducing the ability to modify the operation of ss 33 and 34 by, for example, excluding certain kinds of supports from inclusion in participant plans. It is through the Rules that the executive is able to implement, within the federalism constraints imposed in s 209, some policy decision-making about the nature and extent of supports to be provided or funded under the NDIS.
…
In my opinion, the text and context of s 33(5)(c), read with s 34(1) indicates that the CEO (or the delegate or Tribunal) must either be satisfied that a support has the character of being a reasonable and necessary support, or that it does not. Once a support is identified and described (to take an example away from this case, speech therapy lessons three times a week), then the question for the CEO (or the delegate or Tribunal) is whether she or he is satisfied that support, as identified, is reasonable and necessary for that particular participant. It may be open to the CEO to be satisfied that a differently identified support is reasonable and necessary: in this example, speech therapy lessons once a week. That determination can only be made on the basis of probative evidence.
[10] At [41]-43] and [91]-[93].

As the Full Federal Court of Australia explained in National Disability Insurance Agency v WRMF (2020) 276 FCR 415 (WRMF) at [201]:
The matters set out in s 34(1) are more than mandatory considerations, because in terms s 34 requires that a decision-maker be positively satisfied about each matter. They are more in the nature of criteria of which the decisions-maker (CEO, delegate or Tribunal) must be satisfied on the material. That satisfaction must be reasonably and rationally formed, not taking into account irrelevant considerations, and taking into account any relevant considerations, but otherwise it is for the decision-maker to form the requisite state of satisfaction on the given material.
NDIS Rules
Pursuant to subsection 209(1) of the NDIS Act, the Minister may, by legislative instrument, make rules regarding the NDIS. Subsection 34(2) of the NDIS Act authorises NDIS rules to prescribe ‘methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(a) to (f)’ in section 34. Such rules include the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Supports Rules), which relate to the assessment and determination of the reasonable and necessary supports that will be funded for participants under the NDIS. The CEO of the NDIA, or here the Tribunal, is bound to apply any NDIS rules, pursuant to subsection 33(5)(d) of the NDIS Act.
Paragraph 1.3 of the Supports Rules, in line with subsection3(3) of the NDIS Act, provides that in giving effect to the objects set out in the Supports Rules, ‘regard is to be had to the need to ensure the financial sustainability of the NDIS’. Additionally, paragraph 2.5 of the Supports Rules states that in administering the NDIS and in approving each plan, ‘the CEO must have regard to [the] objects and principles of the Act including the need to ensure the financial sustainability of the NDIS and the principles relating to plans’.
Part 3 of the Supports Rules provides guidance for assessing whether supports meet the criteria in subsection 34(1) of the NDIS Act to be found to be ‘reasonable and necessary supports’ that will be funded by the NDIA.
Paragraph 3.1 of the Supports Rules relates to the ‘value for money’ criterion in subsection 34(1)(c) of the NDIS Act, and provides that:
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 participant’s independence and reduce the participant’s need for other kinds of supports (for example, some home modifications may reduce a participant’s need for home care).
Paragraphs 3.2 and 3.3 of the Supports Rules relate to the ‘effective and beneficial’ criterion in subsection 34(1)(d) of the NDIS Act, and provide that:
In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include:
(a) published and refereed literature and any consensus of expert opinion;
(b) the lived experience of the participant or their carers; or
(c) anything the Agency has learnt through delivery of the NDIS.
In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary seek, expert opinion.
Paragraphs 5.1 and 5.2 of the Supports Rules set out general criteria for whether supports are reasonable and necessary, as follows:
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.
The day-to-day living costs referred to in paragraph 5.1(d) do not include the following (which may be funded under the NDIS if they relate to reasonable and necessary supports):
(a) additional living costs that are incurred by a participant solely and directly as a result of their disability support needs;
(b) costs that are ancillary to another support that is funded or provided under the participant’s plan, and which the participant would not otherwise incur.
Schedule 1 of the Supports Rules sets out the considerations to be taken into account when deciding whether it is appropriate for the NDIS to fund a particular support (as opposed to another service system), including health, mental health, higher education and vocational education and training, employment, housing and community infrastructure and transport.
EVIDENCE
Lay evidence
Ms O’Hearn
The Tribunal has considered Ms O’Hearn’s Statement of Lived Experience filed in this proceeding and dated 4 July 2023.[11] Most relevantly for the remaining disputed support, Ms O’Hearn stated the following:[12]
[11] Exhibit 1, pages 1295-1309.
[12] Ibid., pages 1297 and 1301-1304.
I do not have normal pain sensation, so I don’t always know if I have hurt myself or if I am doing something that harms me.
I have poor core stability as my injury to my spine is just under my breast line. This results in having poor balance and diminished control of my trunk, reaching down requires me to pull myself upright with my arms.
I cannot regulate my body temperature and can easily overheat or get hypothermia. I take on the temperature of my surroundings and find it hard to restore correct core temperature.
I have poor circulation which means I am susceptible to fluid retention and injuries take longer to heal due to poor blood flow.
I have poor bone density due to not weight bearing which means that a simple knock or fall can cause a fracture. I have fallen out of my chair on a couple of occasions and have caused fractures to my spine and I also ended up with 3 complete breaks in my leg.
I cause abnormal wear and tear to parts of my body such as my arms as I am overloading them in a way they were not designed for. Recovery from any set back or harm to my arms take a lot longer to recover as I can take the load off them and requires more intense intervention.
…
My house has a main bathroom with a bath and shower combined. My ensuite has a shower, toilet and pedestal basin. When I bought my house, I was able to use my bath in the main bathroom.
I currently use the ensuite shower which we modified at our own expense, when we first moved into our house. We added grab rails in the shower area and near the toilet and removed the shower screen and the ensuite door so that I could wheel in and fit in the space…
…
I now do not have the functional capacity to stand and step into the shower recess. To use the ensuite shower I now have to do a wheel stand in my wheelchair to jump over the shower recess lip, wheel into the shower recess area and then do a seated transfer onto a plastic stool. To do this I am positioning my wheelchair on a wet surface to transfer onto the shower chair that is also on a wet surface.
I have started to have falls onto the ensuite shower floor as my chair has slipped. I have jarred my arms from trying to break my fall and have caused further injury to my arms in this process.
…
Unfortunately, there is not enough space to add a solid permanent seat in the shower in a way that I could wheel next to. Adding more grabrails also would not fix the transfer hazard as I am still transferring onto a stool on a wet surface with less strength than I used to have.
…
I also used to use the main bathroom which has a large open space with a large triangular spa bath with an overhead shower. Initially I could get in and out of the bath with ease, as my legs had more function and my arms were stronger without any impingement to lift myself without any steps.
Over time this ability to use the bath has decreased to the stage that it is currently impossible to get in and out, even using a bath board. I have not been able to access the bath now for a number of years. I have tried to get funding from NDIS for over 4 years now to properly modify the bath so that I can access it.
…
The bath is needed for much more than relaxation. There is so much more I can do in a bath that I cannot safely do in a shower. In a bath I can stretch my legs straight while supported which means that I can properly wash all of my body…I can reach my feet in a bath and I can safely collect any items I drop. Because I am able to stretch out in a bath I am able to take the pressure off my legs and give my feet some attention. I can lean forward to reach my feet without having any balance issues or fear of falling off the shower chair while I give my body more attention.
…
I have experienced a functional decline which has been exacerbated by not having proper funding to access sufficient therapy support hours and because I am overworking arms and shoulders to reach things due to my home and car not being appropriately accessible to cater adequately for my needs.
…
Transfers from my wheelchair to the custom bath will also incorporate important functional exercise to my routine as I will perform smaller incremental arm push up movements that strengthen arms and core to get into the bath. My OT and my physio have explained that these exercises will also then help to increase my functional capacity which will help make accessing my current ensuite shower safer in the future too. Increased functional capacity will help with safety for all transfers including use of the toilet etc and will help prevent further functional decline and the need for additional supports in the future.
Transfers to the bath would be safer than transfers to a shower as I can position my chair on a dry surface, transfer to a dry surface and transfer onto a solid permanent structure.
I can sense temperature in my upper limbs and can add a temperature gauge to the bath to remove any risk in relation to bath temperature. I have never had any issue with entering a bath that was too hot as I always test with my hand.
If a bigger shower was added to my main bathroom I would still not be able to attend to personal care independently. I would still not be able to straighten my legs unsupported to attend to all personal care. I would still not have access to all of the other benefits a bath provides to address swelling with submersion, pain, relaxation and incorporated functional exercise. Being able to get all of these benefits in one place with a bath would be time efficient and clearly the most cost effective option.
Ms O’Hearn gave evidence at the Tribunal hearing and confirmed adherence to her Statement of Lived Experience.
Ms O’Hearn told the Tribunal she currently uses the ensuite shower, which is a small area, requiring her to do a ‘wheel stand’ in the often wet shower recess, and transfer to a plastic non-permanent stool. She has a hand-held shower and recently slipped when reaching for something to clean her feet. In this regard, Ms O’Hearn said that transferring from the chair to the shower stool can cause issues due to the wet surface. Washing her feet is difficult and not achievable in relation to other body areas because she is sitting on a chair.
Ms O’Hearn explained that the requested custom bathtub was preferred to an easy access shower because she loves being in the water and when she ended up being in a chair she designed a bath that she could get into, she can clean parts of her body she cannot in a shower and can move around better than when she is on a stool, with the attendant falls risk. She considered it safer than a shower and that she can ‘do a lot more’ in relation to her basic needs and it also has other benefits such as relaxation.
Ms O’Hearn told the Tribunal that she had tested her current capacity to transfer in and out of a bath with her occupational therapist and they looked at what she had been able to do on another platform and in hydrotherapy. Ms O’Hearn considered that transfers were safer when she was lifting ‘up and down’ with her arms because there is no feeling of pain, as opposed to ‘sideways transfers’ into a shower from a chair. Further, Ms O’Hearn said that going down into the bath and a small step is ‘easy’ because of support from the step into the bath and was ‘confident’ of not harming herself.
The last time Ms O’Hearn practised transfers was in hydrotherapy the day before the Tribunal hearing, when a step was put into the pool water of a similar size to that which would be installed with the bath. She told the Tribunal that what she thought may have been the hardest element was actually the easiest because of the support from the water. Ms O’Hearn said that she went down into the steps with ‘no pressure’ because she was lowering herself down and there was no weight or pressure on her shoulders. Coming out with the support of the water was said to involve ‘minimal stress’. Ms O’Hearn has practised these movements in occupational therapy and hydrotherapy.
Ms O’Hearn told the Tribunal that on ‘bad days’ she can feel when her legs are ‘weaker’ following therapy and knows that certain things need to be avoided. She will wait until feeling better before bathing and showering. Ms O’Hearn said that she is careful in the shower, but side transfers are always present and risky. She considered the most risk was attached to these side transfers, which are required for both a shower and bath.
Ms O’Hearn told the Tribunal that she would probably use the requested bathtub at night and transfer on a bath board to use the shower in the morning before work. On a bad day, she would transfer onto the bath board and have a shower in the custom bathtub. Ms O’Hearn said that if she felt like she could not get out of the bath, she would not rush, relax and take things carefully; most incidents have occurred when she has not taken enough time. If she was ‘super bad’, Ms O’Hearn probably would not get in the bath, but if she was in the bath would take things more carefully or wait for support. Ms O’Hearn said that she would address the slipping risk by using non-slip tiles and other things like a mat on the tiles to reduce slipperiness, such as a bath mat or rubber waterproof cushion.
Counsel for Ms O’Hearn asked how she would use the bath in future if she could not go up and down its steps. Ms O’Hearn has looked into the ‘what ifs’ and found low cost assistive technology, such as a lift that can go up and down, which is safe and lifts a person down into a bath and will not do so unless there is sufficient battery power to come up and out again. This device could be used independently and with no strain on Ms O’Hearn’s arms due to there being one transfer from her wheelchair. A bath board could be used for the shower component. Ms O’Hearn noted that she cannot use a bath board in the current corner spa bath due to its configuration and the size of a bath board making any attempted transfer unsafe.
Ms O’Hearn told the Tribunal it was ‘huge’ for her to have independence, she hates having to ask people to do things and wants to do things in a normal way. This can put a strain on relationships. Ms O’Hearn came up with the custom bath request, together with her practitioners, as a way to bathe as she wished. It was important for Ms O’Hearn that she participated in the process of considering and identifying a solution to ensure she is comfortable and it fits within how she operates daily and with her family. Ms O’Hearn said that the more normal it can be the more she prefers it. Ms O’Hearn confirmed that she has worked with her physiotherapist, Ms Menzies, for approximately 15 years and with her occupational therapist, Ms Baumer, for around four years.
By way of cross-examination, Ms O’Hearn told the Tribunal that getting in and out of the bath requires a backward flexion of the shoulder, such as an up and down movement. This has been practised with her occupational therapist, including at home with a box to simulate the stepped transfer from a two-step box which reached the same height as her wheelchair and the bath tub.
Ms O’Hearn has also practised this transfer with her physiotherapist at a hydrotherapy pool. She did the exit move, because this was considered potentially the hardest transfer. The step was placed on the ramp exiting the pool to the level where the bath water would be and then the transfer was performed from that height. Ms O’Hearn told the Tribunal she felt no pain in the shoulders during these attempts. She performs the sideways transfer in day-to-day living such as with toileting and into a car, which cannot be avoided. The ‘dip’ down into the steps is ‘easier’ on her arms and this movement is performed ‘all day’ every hour because she does ‘pressure lifts’ up and down. Ms O’Hearn said that she performs strengthening exercises for her biceps and triceps and would undertake these when using the box, but not on an everyday basis.
The box in her bedroom is used when she is on the floor and it is ‘always there’; although not used daily it is a ‘safety mechanism’. If Ms O’Hearn falls over, she needs to use her shoulders, with a backward flexion, to get up. Otherwise the movement up and down is not performed in daily life, apart from exercises or when on the ground.
Ms O’Hearn was referred to the issue of falls and a recent slip and fall in the shower in July 2023.[13] She confirmed that there have been other falls since that incident and estimated these numbered three or four since July 2023. Ms O’Hearn could not recall whether these occurred on good or bad days. One of these falls happened when Ms O’Hearn applied the brakes on her wheelchair in the wet shower recess and attempted to transfer to the shower stool; her wheelchair slipped away because the tyres were not sufficiently inflated, so there was not enough traction on the wet floor. Ms O’Hearn further said that she had twice in the previous three months felt her legs ‘going’ and guided herself down to the floor or onto the previously mentioned box in the bedroom.
[13] Ibid., page 1310.
Ms O’Hearn confirmed that on a bad day she would only use the shower in the requested custom bathtub, because it would be difficult to get in and out of the bath due to the transfers and strength requirements. She told the Tribunal that an up and down transfer required engaging her legs, so a ‘bad day’ is when her legs are not good. Ms O’Hearn told the Tribunal she would minimise the amount of transfers, but could not avoid side transfers. If she could, Ms O’Hearn would minimise the side transfer, which is the one most often required. Ms O’Hearn finds the ‘up and down’ transfer easier because it is safer and requires less force than a side transfer.

Ms O’Hearn told the Tribunal she had experienced a functional decline since a shoulder injury in 2017, mainly due to a loss of strength in the legs and balance issues. She also has pain in the shoulders and said that deconditioning occurred because her house is not accessible and over the last few years she has not been undertaking the required supports due to the COVID-19 pandemic. However, Ms O’Hearn said that there had definitely been a recent functional improvement, because she has been doing more hydrotherapy on her legs, although there are days when her function fluctuates depending on the weather and how she is feeling. Ms O’Hearn said that her arms were responding to treatment and weight training. She previously had bicep pain which has resolved. An MRI found her biceps to be ‘fine’, Ms O’Hearn is experiencing less pain in daily activities and increased weight training has improved the range in her arms. She sees her physiotherapist, Ms Menzies, weekly who was said to have observed Ms O’Hearn’s functional improvements.
Counsel for the NDIA referred Ms O’Hearn to the two quotes for bathroom modifications.[14] She had not asked the proposed bathtub installer for a quote on installing a level entry shower. Ms O’Hearn told the Tribunal she was open to using the other quote provider to install the bathtub and only had one quote for installation of a level entry shower.
[14] Ibid., pages 1316-1319.
In re-examination, Ms O’Hearn told the Tribunal she had not experienced a ‘big decline’ in her balance. She agreed to performing dips ‘up and down’ on a box in emergency situations. When exercising she does not perform dips, but rather weight training to strengthen the muscles to assist with this movement. Finally, Ms O’Hearn told the Tribunal the NDIA had not provided her with any quotes for the requested bathroom modification and she was unconcerned about which provider undertook this work.
Expert evidence
Ms Jessica Menzies – Physiotherapist
The Tribunal has considered the various written material of Ms Menzies filed in this proceeding.[15] Ms Menzies gave evidence at the Tribunal hearing and confirmed that she has worked with Ms O’Hearn for seven years.
[15] Ibid., pages 1274-1275, 1280-1285, and 1314-1315; Exhibit 2, pages 19-20.
Ms Menzies described the custom bath benefits to be that Ms O’Hearn could extend her hips and trunk after being seated for so long, that it was less stressful on her spine when reaching down, allowed for cleaning of her body and personal hygiene, provided relaxation and immersion of the body in water which manages pain and that practising transfers provides buoyancy and maintains her ‘push transfer’. This is a necessary transfer for Ms O’Hearn to adjust her body in the wheelchair and obtain pressure relief; to transfer in and out of the chair she is required to push her body upwards.
To get in and out of the bath, Ms O’Hearn would perform a level sideways transfer, which would also be required for showering, and move two steps down into and then back out of the bath. The water would allow some buoyancy and lessen the burden on Ms O’Hearn’s shoulders.
Ms Menzies disagreed with the opinion of Ms Tracey, Occupational Therapist, that these transfers could lead to possible injury. Ms Menzies told the Tribunal that the side transfer is the most ‘loaded’ transfer and the ‘dipping’ up and down transfer is easier and enhanced through therapy and exercises. This was not an ‘injurious manoeuvre’ for Ms O’Hearn ‘at this time’ and they continue to work together to maintain the performance of this task. If Ms O’Hearn had an acute flare up of shoulder pain this task would not be recommended because it could result in her performing a compensatory movement that would cause injury. Ms Menzies told the Tribunal Ms O’Hearn would continue to perform the transfer through exercise and maintaining her condition, which aides her independence. If Ms O’Hearn was unable to transfer due to pain in the shoulder, Ms Menzies opined that she could use a bath lift to assist her in and out of the bath and this could be used now and into the future with the custom bath, but not with the current ensuite shower.
Ms Menzies confirmed that Ms O’Hearn has practised doing transfers or ‘dip’ movements required for the bath and that she can perform these ‘safely’ and in a ‘pain free manner’. They have practised in the shallow part of the hydrotherapy pool and in the home with steps in the same layering as the proposed step into and out of the bath.
Under cross-examination, Ms Menzies told the Tribunal that Ms O’Hearn’s lower limb strength has declined in recent years, so her upper limbs are required to be ‘loaded more’ with daily living and transfers, therefore she has developed more shoulder pain and headaches. Ms Menzies said there had been ‘incremental gains’ with Ms O’Hearn’s left shoulder; the neck and head pain were ‘a lot more settled’ with regular treatment and strength exercises. Ms Menzies confirmed dressing and showering required more use of upper limbs and Ms O’Hearn was less able to stand unassisted. She said it was ‘likely’ that Ms O’Hearn would continue to decline over time, including her lower limb strength, but a rapid decline is sought to be avoided. She could quite possibly further aggravate her shoulders and this is ‘the battle’ for people in wheelchairs.
Ms Menzies agreed that Ms O’Hearn would likely have a reduction in her upper body strength, but they are trying to maintain this through regular strength and conditioning, although it is inevitable that there will be changes in the spine and the ability to strengthen the neuromuscular system. It was hard to predict if or when that would happen. Ms Menzies told the Tribunal she hoped it does not happen, but Ms O’Hearn will have to rely more on her upper body strength over the years, including due to her aging.
Ms Menzies said that Ms O’Hearn had made gains in her ‘pain free range’ of the shoulders and the frequency and intensity of pain and headaches had diminished. For example, Ms O’Hearn had a full pain free right shoulder and was able to elevate her left shoulder to 90 degrees, which she was unable to do in February this year.
Ms Menzies agreed that the risk of upper body reduction was due to wheelchair use, but said there was a ‘fine line’ with balancing overloading and underloading. With bath transfers, Ms O’Hearn would be required to perform a slight shoulder extension backwards. Ms Menzies agreed that this was a ‘dip’ and Ms O’Hearn has practised this movement in a hydrotherapy pool with the buoyancy of water. Ms Menzies said that Ms O’Hearn performs this movement often in her wheelchair and does a ‘similar’ action when getting up and in and out of the chair and also when adjusting her position in the chair. This has been observed by Ms Menzies ‘quite regularly’. Ms Menzies disagreed that there would be more weight transferring in moving to the bath and said it would be less because of the water and its buoyancy. However, she has not simulated the proposed bath set up in their clinic sessions.
Ms Menzies confirmed her opinion that she expects Ms O’Hearn will make only small improvements in her functional capacity; these are not expected to emerge immediately but over time.[16] Ms Menzies told the Tribunal her evidence was not that Ms O’Hearn would get a meaningful benefit in relation to her strength, but that her transfers in and out would be beneficial.[17]
[16] Exhibit 1, page 1314.
[17] Ibid., page 1275.
Counsel for the NDIA put to Ms Menzies that there was no functional benefit from the requested bath. She told the Tribunal it would be another opportunity for Ms O’Hearn to perform transfers in a modified way with water in the bath, which would therefore be strength work and lead to strength gains. She agreed that this exercise can be performed in a hydrotherapy pool, but said it was ‘different’ because the pool is ramped and Ms O’Hearn would not be coming all the way out of the pool as she would with the bath. Ms Menzies told the Tribunal that Ms O’Hearn performed the transfer with the step in the pool, which was ‘so much easier’ because of the buoyancy, while the bath is not for strength purposes but due to all the other reasons that Ms O’Hearn wants to bathe rather than shower all the time. To this end, Ms Menzies confirmed that the bath is not necessary for strength and conditioning, but it would support that strength and conditioning.
Ms Menzies told the Tribunal she was unsure of studies regarding any lasting effect or improvement for a person’s pain from bathing, but considered it would have a benefit on a person’s pain levels. She accepted there was a ‘chance’ Ms O’Hearn may aggravate her shoulders if she used the bath daily due to this being a new activity, but would advise her to commence with one to two days between baths to build up her capacity and ensure there was no issue with pain. Ms Menzies said that if there was a sudden drop in Ms O’Hearn’s upper limb condition and strength, she would advise her to return to ‘offloading’ and training to allow the tissue to adapt and to modify the use of the bath or employ the use of assistive technology.
Ms Menzies told the Tribunal it was hard to say whether the bath would remain appropriate in the longer term, but for the ‘next few years’ she expected Ms O’Hearn to transfer safely in and out of the bath, however if it became painful or she was unable to safely do so there were options such as a bath lift or hoist system.[18] Ms Menzies also said it was ‘hard to predict’ whether use of the bath could become painful because of Ms O’Hearn’s decline or whether she may suffer another injury impacting her functional capacity. In this regard, Ms Menzies agreed that Ms O’Hearn was at a high risk of falls and this was why she considered other ways to access the bath if there was a change in her capacity.
[18] Exhibit 2, page 19.
In re-examination, Ms Menzies was asked whether it was likely Ms O’Hearn’s capacity would decrease in the next 12 months such that she could not perform the required transfers in and out of the bath. She told the Tribunal she hoped that Ms O’Hearn makes ‘incremental gains’ and improves her pain free upper limb function and ability to transfer. However, when asked about the next few years, Ms Menzies could not specify but said it was likely more than one year and agreed that it also depended upon other therapies Ms O’Hearn was receiving at the time. Ms Menzies told the Tribunal she hoped that other modifications would assist in Ms O’Hearn managing her pain and that she can establish a regular exercise and strength program, which would all improve her functionality at home.
Ms Menzies agreed that the risk of Ms O’Hearn’s long term decline has reduced due to other modifications having recently been agreed by the NDIA, the absence of which has led to a decline in her upper limb function and resulted in her shoulder problems. Ms Menzies told the Tribunal that Ms O’Hearn’s shoulder issues were, in part, because she had not previously had access to those modifications. The other goals for Ms O’Hearn were said to be maintaining her independence and function at that point in time, the benefits of weight bearing in the pool is bone health, maintaining joint range movement and joint health. They are working on maintaining Ms O’Hearn’s ability to transfer, extend her hips in a standing position, and maintain existing shoulder range. Ms Menzies said the video of Ms O’Hearn performing the ‘up and down’ movement did not cause her concern about her ability to move in and out of the bath.
Ms Menzies told the Tribunal she would work with Ms O’Hearn to reduce the risk in using the bath by continuing to practice the required manoeuvre and to progress her arm strength, perform exercises in clinic and not do it on a daily basis. She also recommended one day’s break between use of the bath. Ms Menzies was not aware of any detriment from long-term use of the bath and accepted that the associated relief from pain and swelling was temporary. She opined that this would probably lower Ms O’Hearn’s ‘chronic stress levels’ and Ms Menzies said that people with persistent pain are more pain sensitised. As a result, being pain free even for a short period of time could afford long term benefits in a person’s pain condition.
Ms Jessie Baumer – Occupational Therapist
The Tribunal has considered the written material of Ms Baumer which was filed in this proceeding.[19] Ms Baumer gave evidence at the Tribunal hearing. She told the Tribunal that choice was important to Ms O’Hearn because if a person does not want to use something it will not have a clinical benefit because it was not their choice or preference. In this regard, Ms Baumer said that when she undertook her assessments, Ms O’Hearn was able to use the ensuite shower and putting in a level entry shower at the opposite end of the house was not ideal. Ms O’Hearn wanted a bath for its benefits and was willing to go to the other end of the house for that, but showering would continue to occur in the ensuite.
[19] Exhibit 1, pages 20-64, 1267-1273, 1277-1278, 1312-1313; Exhibit 2, pages 15-16.
Ms Baumer told the Tribunal that Ms O’Hearn currently has problems using the ensuite shower, which probably would not be solved by a level entry shower. Ms Baumer described that, when Ms O’Hearn transfers from her wheelchair to the shower stool, she has had falls and would still need to transfer to a stool or commode, a transfer would still be required and would not be solved by moving the shower to the other end of the house. Ms Baumer had considered and weighed up choice, together with the benefits and risks involved with this support for Ms O’Hearn. Ms Baumer said there are risks with the bathtub, but Ms O’Hearn has the cognitive capacity to make an informed choice and decision regarding risk and use of the bath.
By way of cross-examination, Ms Baumer told the Tribunal that a level entry shower involved less transfers to enter than a customised bath and that moving from a commode to such a shower is low risk including regarding the potential for falls. However, Ms Baumer said that transferring onto a commode entails risk, because it still has movement which is the problem with the shower stool and was therefore potentially similar to Ms O’Hearn’s current transfers. When it was put to Ms Baumer that a commode could be entered from outside the bathroom, which cannot be done with a stool, she said that most of Ms O’Hearn’s falls have occurred in a dry environment with the unsecured stool when she had not showered. Ms Baumer opined that the tiles were not necessarily the problem, the issue is movement, and this risk will not be reduced by moving the stool. She agreed that if movement was reduced, through the use of a mobile commode not in a tiled environment, this would reduce the risk. Counsel for the NDIA asked Ms Baumer whether a level entry shower was a safe alternative. She told the Tribunal that there was some risk associated with any showering activity.
Ms Baumer agreed that showering would be acceptable in the future, but that this would be when Ms O’Hearn is ready to do so, which is not presently, such that it would not be beneficial. She also agreed that Ms O’Hearn might need a level entry shower in the future. Ms Baumer confirmed that Ms O’Hearn had experienced a significant decline in functional capacity when her regular activities stopped due to the COVID-19 pandemic and funding issues. Counsel referred Ms Baumer to her functional assessment report of 12 October 2021, in which she stated that Ms O’Hearn’s ‘decline in mobility is a result of further deterioration of her spinal cord injury and declined strength due to aging and injury’.[20] She told the Tribunal that the decline was due to deterioration and ageing, but was also associated with a lack of activity. Ms Baumer did not recall identifying a lack of funding as an issue in that report. She confirmed that her last functional assessment was on 10 January 2023. Ms Baumer agreed that Ms O’Hearn had experienced a further functional decline in the period from her October 2021 report to her report in January 2023. As a result, Ms O’Hearn was said to be unable to put pressure on her legs when transferring and this was associated with a loss of leg strength. Ms Baumer also agreed that Ms O’Hearn has suffered increased pain in her upper limbs. To this end, Ms Baumer said that, while she has not conducted a functional assessment of Ms O’Hearn since January 2023, she had recently reviewed her ‘transfers’. Ms Baumer considered Ms O’Hearn’s functional capacity was ‘pretty similar’, but Ms O’Hearn had reported increased upper limb strength from exercises, although her lower limb capacity remained as previously reported.
[20] Exhibit 1, page 21.
Ms Baumer told the Tribunal that she and Ms O’Hearn had simulated the proposed transfer in and out of the bathtub three times, but she has performed it more than this on her own. One simulated transfer was performed in January 2023 on a ‘good day’. A subsequent transfer in early October 2023 was performed on a ‘bad day’ because Ms O’Hearn was experiencing migraines, but she was able to perform the six transfers required ‘without concern’. She performed these transfers again in October 2023, which was said to be a ‘better day’.
Counsel for the NDIA referred Ms Baumer to her report of January 2023 and her summary of the requested bathroom modification.[21] She was asked whether her recommendation for the customised bathtub was contingent on the assumption that Ms O’Hearn’s functional capacity will improve. Ms Baumer told the Tribunal it was not contingent on improvement, but just not a ‘significant decline’ of Ms O’Hearn’s upper limb function. It was also based on Ms Baumer’s understanding that Ms O’Hearn will not use the bathtub on a day when there is increased risk. Ms Baumer said that if Ms O’Hearn’s capacity declined and her bad days increased, she would not be able to use the bathtub as frequently, but with low cost assistive technology, such as a bath chair, she could continue to use it. This would still allow Ms O’Hearn to fully submerge in the bath and be approximately 5 millimetres off its base.
[21] Ibid., page 1271.
Ms Baumer told the Tribunal that she has observed Ms O’Hearn’s functional improvements over the four years they have worked together, although she ‘definitely goes through waves of when she has been able to do more physio and physical things’, but Ms Baumer has not recently observed her reported functional improvements.
Ms Baumer confirmed that she has not assisted people with Ms O’Hearn’s condition using a customised bath or observed whether the required transfers cause an aggravation of physical issues. She said there was some literature about a bath’s ability to assist with pain management, although conceded that there was ‘not a huge amount of peer reviewed evidence’ and said the benefits were probably likely to be immediate rather than enduring.
Ms Baumer was asked whether the backward shoulder extension, or ‘dip’, required to transfer was a movement performed regularly by Ms O’Hearn. She told the Tribunal that Ms O’Hearn uses that movement to re-position her body in the wheelchair or on other surfaces and when transferring from off the floor. Ms Baumer said she was not equipped to comment on whether there was a risk of aggravation or overuse from this movement, but considered this transfer to be safer than a sideways transfer.
In re-examination, Ms Baumer told the Tribunal she did not consider there would be sufficient room for Ms O’Hearn to use a commode in the current ensuite bathroom. Ms Baumer said that the ensuite will continue to meet the majority of Ms O’Hearn’s needs, unless she needs a commode, but would need to undertake a further assessment. There was always the potential that a level entry shower with room for a hoist would be required, but it was hard to know the progress of Ms O’Hearn’s condition or whether the current environment could continue to meet her needs. Ms Baumer told the Tribunal there were many options to continue using the requested bath, such as with a chair, bath board, using the shower component, or being hoisted into it or onto a board. She agreed that these were long term options. Finally, Ms Baumer said that a physiotherapist was best equipped to address issues such as the biomechanics of shoulders and Ms O’Hearn’s condition and, in this regard, Ms Menzies has worked with Ms O’Hearn for longer and has a better understanding of the neurological issues with the condition.
Ms Christine Tracey – Occupational Therapist

The Tribunal has considered the reports of Ms Tracey dated 6 and 11 October 2023, which were filed by the NDIA in this proceeding.[22] Ms Tracey gave evidence at the Tribunal hearing. She considered, from the information provided, that there were ‘risks associated’ with the requested bathtub. While Ms Tracey acknowledged that there were ‘always risks’ with transferring into baths, in Ms O’Hearn’s case there is a ‘risk of injury or falls’, mostly coming out of the bath in a wet space when the body is also wet. The other concern is about the ‘excessive burden’ on Ms O’Hearn’s shoulders in powering into the bath.
[22] Exhibits 3 and 4.
Ms Tracey told the Tribunal that, compared to a shower, the risk involved with a bath is that a person is still moving when surfaces are wet and doing a number of transfers (here being three in and three out), with the more difficult being coming out when wet. In comparison, a shower commode still requires a transfer, but this can be done in the bedroom or dry surface in the bathroom and there are no transfers in wet areas, mitigating ‘all risks’. However, she said that there is a small risk of falling forward if the chair tilts forward and the weight shift is not correct.
Ms Tracey was referred to her written evidence that she had rarely seen a person in a wheelchair use a customised bath and said that baths are ‘more challenging’ and ‘create more of a risk’. The most common issue she encounters is people wanting to mitigate risks by having a level entry shower. Additionally, Ms Tracey noted that people do not use baths as much as showers.
Ms Tracey’s biggest concern was the required push up and down from the bath step. She noted Ms O’Hearn’s shoulder issues and pain levels within a very small range of movement. The required transfers would need an extreme extension of the shoulder and put an impact on the rotator cuff. Ms Tracey told the Tribunal her concern was that Ms O’Hearn has experienced a gradual decline where her legs have become weaker, leading to more reliance on her arms. Ageing could lead to a risk of further injury due to the frequent use of excessive force. Ms Tracey said her rehabilitation focus is to mitigate all risk, which includes further injury or exacerbation. This is achieved by making surfaces ‘as even as possible’ to reduce the power required from the shoulder. In this regard, the bath steps will have an impact with more force on the shoulders.
By way of cross-examination, Ms Tracey told the Tribunal that the main differences between an occupational therapist and physiotherapist is that the latter specifically deals with transfers and mobility, whereas an occupational therapist deals with these issues based on a physiotherapist’s recommendations and their own safety assessment. She agreed that it was important in all cases that an occupational therapist took account of a physiotherapist’s expertise.
Ms Tracey agreed that her view of Ms O’Hearn’s functional capacities was based on Ms Menzies’ assessment and that her opinion may change if the information reported by Ms Menzies changed. Ms Tracey confirmed she had not conducted a functional assessment of Ms O’Hearn, nor had she met or spoken with her, and that Ms Menzies was best placed to make assessments regarding her mobility and strength. She also agreed that Ms Menzies was best placed to assess how Ms O’Hearn may decline in the future. Ms Tracey further agreed that the issue of risk and excessive force was for Ms Menzies to comment on; she did not know the height of the proposed bath step. However, Ms Tracey said she could provide an opinion regarding force based on her understanding of the mechanism of the shoulder, the state of Ms O’Hearn’s shoulders and how transfers occur. She agreed that this opinion would be in the abstract and not with specific circumstances and only by reference to Ms Menzies’ report.
Ms Tracey agreed that occupational therapy was a client-centred profession and that the primary goal is to assist people to perform activities of daily living, which included washing their body. She agreed that this required an identification of a person’s needs, goals and limitations and taking account of their choices, and to understand their own perception of their strengths and weaknesses to identify what was most appropriate in the circumstances. Ms Tracey also agreed there was no point making a person use a therapy that they did not want to use.
Ms Tracey told the Tribunal she would ordinarily spend at least two to three hours over a couple of days conducting a functional capacity assessment with a previously unknown client. It was preferable that she get to know the client and their story and said the longer she has with a person the better her understanding of their requirements. If Ms Tracey has a new client, she conducts an interview to develop a relationship and make them feel comfortable and then conducts a functional-based assessment of them performing daily activities. She agreed that it was an inherent limitation of her report that she had not done any of these things in relation to Ms O’Hearn. However, Ms Tracey said it was not unusual to support another therapist in the decision making process regarding the best options for a person and an occupational therapist often provides a ‘consultancy type approach’ to other therapists or the NDIA in order to formulate an opinion. She again agreed that it was ‘better if you know the client’ and her understanding of Ms O’Hearn’s situation is limited to the extent it is reflected in the documents she reviewed.
Counsel put to Ms Tracey that her reports did not refer to respecting Ms O’Hearn’s choice in relation to the customised bathtub. She told the Tribunal this was not asked of her in the questions provided by the NDIA. While she seeks to understand a client, Ms Tracey said she also has an obligation to provide the best decision based on the available information and safety was the ‘biggest concern’ in this matter. Ms Tracey agreed that her report did not contain reference to what she had previously described as the requirement to balance choice and risk in making a recommendation. Ms Tracey was asked whether she accepted that, for someone in Ms O’Hearn’s circumstances, there were always unavoidable risks in life. She again referred to the risks to Ms O’Hearn with transfers generally and specifically those involved with the requested bathtub, but agreed that a shower commode would also involve transfers. Ms Tracey told the Tribunal that there was ‘different risk’ between an ‘up and down’ movement and a sideways movement, with the former potentially exacerbating the shoulder, whereas the sideways transfer was ‘less risky’ for the shoulder although they were still being used. Ms Tracey partially agreed that Ms Menzies was best placed to opine about the risk of injury with the up and down transfer. She agreed that some of Ms Menzies’ information formed the basis of her opinion, but said she used all of the provided information to form that opinion. Ms Tracey agreed that if Ms Menzies’ opinion changed, this would affect her own opinion.
Ms Tracey also agreed that a limitation of her opinion was that she had not seen photographs or diagrams of Ms O’Hearn’s bathroom or the proposed bath. She agreed that the design of the bath could affect the slipping risks, non-slips tiles could be used and that non-slip surfaces were ‘common and an expectation in a majority of bathroom modifications’, together with other assistive technology such as non-slip bathmats and grabrails. Ms Tracey expected that Ms O’Hearn would work with her occupational therapist and physiotherapist to manage risks and ensure all safety issues were mitigated. Ms Tracey agreed that if there was water in the bath when Ms O’Hearn exited, this would definitely reduce the risk of injury, but not eradicate the risk because she would still need to lift her body. She also accepted that there were temporary benefits from a bath, such as in relation to pain and swelling, which are not available from a shower. Finally, Ms Tracey agreed that, if the bath was approved and Ms O’Hearn’s function declined, a bath chair or seat could be used on ‘off days’ to allow her to use the shower in the bath; she referred to Ms Baumer’s evidence that these items could be used in the custom bath and Ms Tracey assumed this was correct.
CONTENTIONS
Ms O’Hearn
Ms O’Hearn contended that the disputed supports in this proceeding were reasonable and necessary and met all of the criteria in section 34 of the NDIS Act. In relation to the bathroom modification, Ms O’Hearn submitted that the evidence demonstrated the benefits she will gain and the NDIS goals this support would help her achieve, including increasing function so as to maintain her independence and safety in her home.
Additionally, based on the NDIA’s evidence from Ms Tracey, Occupational Therapist, filed in the days before the Tribunal hearing, Ms O’Hearn also sought funding for a six week ‘booster period’ of intensive physiotherapy and hydrotherapy in addition to the disputed 156 hours annually for those requested therapies. In summary, Ms O’Hearn sought a decision specifying that the disputed supports be included in her statement of participant supports and funded under the NDIS and that the review date for her NDIS plan is 12 months from the date of the Tribunal’s decision.
NDIA
The NDIA contended that, although the requested bathroom modification met some of the applicable criteria, it did not satisfy subsection 34(1)(c) and (d) of the NDIS Act requiring it to represent value for money and be, or likely to be, effective and beneficial for Ms O’Hearn, and that it engaged rule 5.1(a) of the Supports Rules because it will likely cause her harm. Therefore, the NDIA submitted, this requested support should not be included in Ms O’Hearn’s statement of participant supports.
However, as detailed above, the NDIA in its written closing submissions in this proceeding accepted that there should be an increase in the number of hours for Ms O’Hearn’s physiotherapy and hydrotherapy, including the recommended six week intensive ‘booster period’ of these therapies. In addition, the NDIA accepted at the Tribunal hearing that Ms O’Hearn’s NDIS plan made on 18 September 2023, after the commencement of this proceeding, contained a number of errors and did not include some of the supports that are reasonable and necessary for Ms O’Hearn. Accordingly, the NDIA submitted that the decision under review should be set aside and substituted with a decision to detail all of the reasonable and necessary supports to be included in Ms O’Hearn’s NDIS plan, including the increased therapy hours, but not the requested bathroom modification.
CONSIDERATION
The Tribunal sets out below its consideration and findings in relation to the bathroom modification requested by Ms O’Hearn to be funded under the NDIS, which remained the only support in dispute between the parties in this proceeding after the receipt of their written closing submissions. This support is a modification of the main bathroom in the family home, which would include the removal of the existing bath, installation of a custom bath containing a transfer bench and steps into the bath, and the installation of a shower screen. It would also include an overhead shower in the bathtub.
As set out above, the dispute between the parties ultimately focused on the requested bathroom modification and whether or not that support satisfied subsection 34(1)(c) and (d) of the NDIS Act or engaged rule 5.1 of the Supports Rules. Subsection 34(1) of the NDIS Act requires satisfaction of all of the matters set out in that provision. It was not disputed by the NDIA that the requested support met the balance of the provisions in subsection 34(1) of the NDIS Act. For the avoidance of doubt, based on the available evidence, the Tribunal is satisfied that the requested bathroom modification meets subsection 34(1)(a), (b), (e) and (f) of the NDIS Act.
Does the bathroom modification represent value for money?
Subsection 34(1)(c) of the NDIS Act requires the Tribunal to be satisfied that the requested bathroom modification 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. Rule 3.1 of the Supports Rules sets out matters to be considered in deciding whether a support represents value for money.
The costs of the requested support, which were unchallenged by the NDIA, were contained in a quote most recently provided in July 2023 by an installer in the Northern Territory, which totalled $19,974.22.[23] The bathroom modification works quote included: construction of a new custom bathtub and ‘transition bench/seat to new dimensions of 2800mm long x 900mm wide x 600mm high’, with the bathtub to be a ‘minimum of 1750mm in length’; the building of ‘2 x set of steps for entry/exit to the bath with handrails mounted to LHS [left hand side] of bathtub to meet Australian Standards’; and installation of ‘new non-slip floor tiles to the remaining bathroom floor’.[24]
[23] Exhibit 1, pages 1318-1319.
[24] Ibid.
The evidence pointed to Ms O’Hearn experiencing a decline in her functional capacity in recent years and that this may occur in the future to the point where the current ensuite shower is inaccessible. Due to the size of the ensuite, an accessible shower or bath would not be able to be accommodated by modification of that space. It also currently presents a falls risks for Ms O’Hearn. Accordingly, the only alternative support identified to the requested custom bathtub was modification of the main bathroom, but with the installation of a level entry shower for better accessibility as Ms O’Hearn’s requirements changed.
Ms O’Hearn explained to the Tribunal the limitations of the ensuite bathroom and her occupational therapist, Ms Baumer, stated in early 2023 that:[25]
The ensuite bathroom met Judith’s needs without concern up until recently when she experienced a significant decline in function. She is still managing with the current ensuite, however, has identified difficulty completing personal care tasks particularly dressing and transferring to a shower chair. It is anticipated that Judith will require modifications to her ensuite in the future if she experiences further decline in function. If Judith requires additional assistive technology to meet her personal care needs, it is unlikely this equipment will be able to be used in the existing ensuite due to limited circulation space. Modifications to the main bathroom will be advantageous to enabling continued access to the bathroom. Judith will be able to use a transfer board to access the shower component of the recommended bath.
[25] Ibid., page 1277. See also Exhibit 1, page 1302.
The NDIA accepted that Ms O’Hearn’s current bath in the main bathroom is not usable and that she has difficulty using her existing ensuite shower. It also accepted that further supports will be necessary to ensure Ms O’Hearn can bathe safely in the coming years.
The Tribunal had evidence of a quote from another builder in the Northern Territory for the installation of a new accessible shower in Ms O’Hearn’s main bathroom, totalling $49,530.45.[26] Plainly, at double the quote for the requested bathroom modification, this possible alternative support is not a ‘substantially lower cost’ option, having regard to rule 3.1(a) of the Supports Rules. There were no other quotes for this or any other alternative support. In this regard, the Tribunal finds that neither a mobile shower commode nor a transfer tub bench are comparable supports to a custom bathtub and nor would they achieve the same outcome for Ms O’Hearn. For example, on the available evidence, a shower commode would not fit in the ensuite bathroom, a transfer tub bench cannot be used with the existing bathtub in the main bathroom and a level entry shower, which is a comparable support, is more than double the cost of the bathroom modification.
[26] Ibid., pages 1316-1317.
Accordingly, the Tribunal is satisfied that the cost of the requested support is reasonable relative to both the benefits achieved and the cost of alternative support.
While an accessible level entry shower may reduce some current safety concerns, it would not enable Ms O’Hearn to independently perform all of her personal care tasks or deliver other benefits that a bath would provide, as explained by her therapists, and that cannot be obtained from a custom shower. Additionally, there was no evidence that other low-cost assistive technologies could be used in the medium to long-term which would achieve the same outcomes as the requested support.
Based on the evidence, the Tribunal is satisfied that the bathroom modification will assist Ms O’Hearn to maintain her functional capacity and be of long-term benefit, even if the shower component of the bathtub is the only element able to be used by Ms O’Hearn at some later point in the future, including with the use of assistive technology. Both of Ms O’Hearn’s treating therapists had the benefit of reviewing the proposed bathroom modification and identified assistive technology that could be utilised to ensure the accompanying bathtub remained accessible and usable into the future. Ms O’Hearn herself told the Tribunal how the requested bathtub could be utilised if her capacity declines and she is unable to access it independently. The Tribunal is satisfied that the bathroom modification will increase Ms O’Hearn’s independence and reduce the need for other kinds of future supports.
Ms Baumer, Occupational Therapist, stated that Ms O’Hearn would use the bath for relaxation, independent personal care and management of her pain and swelling of the lower limbs.[27] She also considered that access to the bath would promote the incorporation of exercise into Ms O’Hearn’s daily routine to maintain her functional capacity.[28] Ms O’Hearn explained the benefits of functional exercise through the use of the bath and that these will assist to increase her capacity, maintain independence and reduce the need for further supports in the future, such as a support worker to assist with personal care activities.[29]
[27] Ibid., page 53.
[28] Ibid.
[29] Ibid., page 1303.
Ms Baumer disagreed with Ms Tracey’s opinion that it would be highly unlikely the custom bathtub would remain appropriate in the longer term for Ms O’Hearn. While Ms Baumer opined that Ms O’Hearn will be able to use the requested bath for ‘at least several years’, she also stated that Ms O’Hearn, with increased strength, ‘will be able to access and continue to access the bath for the longer term’.[30] Additionally, Ms Menzies told the Tribunal that Ms O’Hearn will be able to independently enter and exit the bath safely for the ‘next few years’. This will also depend on Ms O’Hearn’s access and response to other therapies and Ms Menzies gave evidence of improvements made by Ms O’Hearn, particularly in relation to her arms, which would be vital for accessing the bath.
[30] Exhibit 2, page 16.
In her evidence to the Tribunal, Ms Tracey largely deferred to the opinions of Ms Baumer and Ms Menzies in their respective capacity as Ms O’Hearn’s occupational therapist and physiotherapist. She also acknowledged the limitations of her report, which was not based on a functional assessment of Ms O’Hearn, but a review of the documentary evidence. In this regard, Ms Tracey also did not have the benefit of meeting with, or speaking to, Ms O’Hearn or attending her home to make a first-hand assessment to determine the suitability of the requested support. Additionally, Ms Tracey was not even provided by the NDIA with the actual design of the proposed bathroom modification, including its specifications, and initially misunderstood that there were six transfers in total required to get in and out of the bathtub, not six transfers for both entering and exiting the bathtub. She conceded that not having the benefit of the design of the bathroom and its layout was a limitation in her report and accepted that any risk assessment related to slipping could be affected by the design of the bathtub. Moreover, while Ms Tracey acknowledged that occupational therapy was a client-centred profession, it aimed to help people participate in activities of daily living, including washing themselves in a bath or shower, and that this required taking into account a person’s choices, tellingly none of her evidence gave weight to Ms O’Hearn’s choices and the balancing required between different considerations. For all of these reasons, the Tribunal respectfully gives limited weight to Ms Tracey’s evidence.

Ms Tracey was engaged by the NDIA late in this proceeding and was not engaged to conduct a functional in-home assessment of Ms O’Hearn. The Tribunal’s finding in no way seeks to diminish the considerable expertise of Ms Tracey, but rather it reflects the nature of her engagement in this proceeding; her evidence was necessarily limited by the constraints of her brief from the NDIA. Given the nature of Ms Tracey’s engagement in this proceeding, only one occupational therapist, Ms Baumer, had met with Ms O’Hearn and conducted a functional assessment, which has rightly been described as ‘so important’, albeit in relation to the access requirements in the NDIS Act.[31]
[31] Mulligan v National Disability Insurance Agency [2015] FCA 544 at [56].
For the foregoing reasons, and based on the available evidence, the Tribunal is satisfied that the requested support represents value for money pursuant to subsection 34(1)(c) of the NDIS Act.
Will the bathroom modification be, or likely be, effective and beneficial for Ms O’Hearn?
Subsection 34(1)(d) of the NDIS Act requires the Tribunal to be satisfied that the requested bathroom modification will be, or is likely to be, effective and beneficial for Ms O’Hearn, having regard to current good practice. Rules 3.2 and 3.3 of the Supports Rules set out matters to be considered in deciding whether a support will be, or is likely to be effective and beneficial. This includes the lived experience of the participant. As set out in McCutcheon and National Disability Insurance Agency, the Tribunal said:[32]
How much weight “lived experience” should be given will depend on all of the available evidence. Where it is consistent with reliable, relevant, independent evidence, it will likely be given a good deal of weight. Where reliable, relevant, independent evidence is lacking, evidence of “lived experience” may be particularly important.
[32] [2015] AATA 624 at [86]. See also SZWV and National Disability Insurance Agency [2022] AATA 2973 at [76], [81]-[82].
The Tribunal finds that Ms O’Hearn’s evidence accords with the expert evidence from her treating practitioners, Ms Menzies and Ms Baumer. For the reasons previously stated, their evidence is preferred to that of Ms Tracey in this proceeding. Additionally, having regard to rule 3.2 of the Supports Rules, there was little to no evidence of literature or consensus opinion regarding the effectiveness of the support for others in like circumstances, or anything the NDIA had learnt in the delivery of the NDIS relevant to this matter.
Because Ms O’Hearn has experienced a decline in her function, she is no longer able to independently complete stand transfers, and has been unable to use the current bath in her home without modifications. The evidence before the Tribunal indicated that this decline in function has also now compromised Ms O’Hearn’s ability to safely transfer from her wheelchair to her ensuite shower stool.[33] The NDIA accepted that Ms O’Hearn’s existing bath was not usable and she has difficulty using her existing ensuite shower. In March 2023, Ms Gibson, Physiotherapist, detailed the risks to Ms O’Hearn in transferring from her wheelchair to her ensuite shower, including bone fractures which would be ‘highly debilitating and significantly impact on her independence and quality of life’.[34] For this reason, and those already mentioned above, the Tribunal is satisfied that Ms O’Hearn’s current ensuite bathroom does not meet her disability needs.
[33] Exhibit 1, pages 1301 and 1310.
[34] Ibid., page 1287.
The Tribunal finds that the requested support will be effective and beneficial for Ms O’Hearn. She told the Tribunal that she will be able to use the bathtub as a shower in the morning before work and at night as a bath. The unchallenged evidence was that using a bathtub will enable Ms O’Hearn to adequately and independently attend to all elements of her personal care, which she is presently unable to do. The Tribunal notes that being as independent as possible in her daily activities for as long as possible is a goal of Ms O’Hearn and was understandably a key theme of her evidence to the Tribunal.[35] The requested bathtub will also afford Ms O’Hearn the opportunity to relax and stretch in the bath, as well as providing temporary relief from pain, together with reduced swelling, which Ms Tracey conceded could not be garnered from a shower.
[35] See also Exhibit 1, pages 1302-1303.
As Ms Baumer, Occupational Therapist, stated, and consistent with Ms O’Hearn’s own evidence:[36]
the main benefits for Judith will include benefits to her muscles and joints, and cleansing and moisturising her skin. Stretching in water is low impact on joints, muscles and bones, reducing risk of injury when stretching out. Being able to stretch out in the bath enhances Judith's ability to wash all areas of her body including behind her knees, her lower legs and feet...Currently when using a shower stool in the bathroom, Judith is not able to safely reach forward to wash her lower limbs and feet or pick up items off the floor. A long-handled sponge has been used in the past, but has not been as effective as safely reaching forward to wash her lower limbs in the bath, due to the inability to reposition her legs in the shower.
Therefore, it is my view that the recommended bath is required opposed to a level entry shower.
[36] Exhibit 1, page 1312.
In this regard, the bathroom modification will reduce the present risks involved for Ms O’Hearn in showering in the ensuite, which has become unsuitable for her requirements. This aspect is further addressed below in these reasons.
Ms Menzies explained the benefits from the perspective of a physiotherapist, evidence which was uncontradicted by any competing evidence from that same perspective:[37]
I think that it would afford [Judith] the ability to extend her hips and her trunk, which she spends most of her life in a seated position. So it allows – it's another opportunity for her to extend out. It's also easier and less stressful on the spine to – you know, to be able to reach down towards her toes and wash…so for hygiene purposes as well. The relaxation side of things as well for her with her shoulders, being able to move her shoulders in a warm water bath would also help with managing pain. And in terms of practising transfers, having a little bit of water in the bath affords some buoyancy for her weight so she's able to practise that push transfer which is really important for Judith to maintain.
[37] Transcript of Proceedings, page 32.
Ms Menzies further explained that the bath would enable Ms O’Hearn to manoeuvre her body in a way that is not possible when seated in a chair and that the practising of transfers will allow her to build strength over time, which is important for her continued functional capacity.[38]
[38] Ibid., pages 41-42 and 47.
As previously stated, the additional benefits that the Tribunal accepts will be, or are likely to be, derived from using a bath, include the ability to incorporate additional functional exercise in Ms O’Hearn’s daily routine, which the evidence suggested would assist in maintaining her current functional capacity, independence and reduce the need for increased supports in the future.[39] The Tribunal is satisfied, having regard to the available evidence of the personal and physical benefits, that the bathroom modification will be effective and beneficial for Ms O’Hearn.
[39] Exhibit 1, pages 1303, 1277-1278 and 1312-1313.
Accordingly, the Tribunal finds that the requested support will be, or is likely to be, effective and beneficial for Ms O’Hearn pursuant to subsection 34(1)(d) of the NDIS Act.
Is the bathroom modification likely to cause harm to Ms O’Hearn?
Rule 5.1(a) of the Supports Rules provides that a support will not be provided or funded under the NDIS if ‘it is likely to cause harm to the participant or pose a risk to others’. The parties agreed that the word ‘likely’, in the context of rule 5.1(a), should be understood as meaning ‘more probable than not’, that being a greater than 50 per cent chance of it occurring.[40] For the following reasons, the Tribunal is not satisfied that it is likely the bathroom modification will cause harm to Ms O’Hearn or pose a risk to others. The Tribunal finds that none of the evidence establishes that it is more probable than not that the requested support will cause harm to Ms O’Hearn.
[40] See the discussion in RJE v Secretary to the Department of Justice (2008) 21 VR 52 at [26]-[39].
As previously set out in these reasons, Ms O’Hearn stated that:[41]
Transfers to the bath would be safer than transfers to a shower as I can position my chair on a dry surface, transfer to a dry surface and transfer onto a solid permanent structure.
I can sense temperature in my upper limbs and can add a temperature gauge to the bath to remove any risk in relation to bath temperature. I have never had any issue with entering a bath that was too hot as I always test with my hand.
[41] Exhibit 1, page 1303.
In February 2022, Ms Baumer, Occupational Therapist, relevantly stated that:[42]
Judith is currently able to complete transfers that replicate what the transfer into and out of a custom made bath (with internal step) would be. Judith’s physiotherapist reported Judith is able to complete the transfers required for the proposed bathtub modification.
[42] Ibid., page 54.
In January 2023, Ms Baumer stated that:[43]
Judith has demonstrated her ability to complete the required transfer for the bath steps when using the transfer bench in her bedroom. Judith was observed to complete this transfer safely during the home visit on 9 January 2023. Judith is able to complete transfers more safely when onto a firm stable surface, therefore the transfer onto the recommended platform for the bath is likely to be safer than the transfer onto the existing shower stool.
[43] Ibid., page 1277.
Furthermore, in July 2023, Ms Baumer relevantly stated that:[44]
In terms of risks, there is a higher risk of falls when accessing a bathroom due to the likely slippery floors. This risk is present when accessing both a shower or a bath. The risk is most significant when transferring however this risk has been considered and addressed with the recommended design of the bathroom, including the transfer bench and gradual stepped down platforms. In fact, the recommended design is likely to reduce the risk of fall while transferring when compared to the current set up of the shower stool in the shower recess.
[44] Ibid., page 1312.
In contrast, Ms Tracey, Occupational Therapist, gave evidence that Ms O’Hearn’s safety was her main concern with the requested bathroom modification. However, as detailed above, Ms Tracey did not meet with, or conduct a functional assessment of, Ms O’Hearn, she was not provided with the design of the proposed bathroom modification and deferred to Ms Baumer and Ms Menzies in relation to Ms O’Hearn’s functional capacity. Ms Menzies told the Tribunal that the required movements and transfers in and out of the bath would not cause Ms O’Hearn injury at this point in time. Ms Tracey’s evidence was not that the likelihood of harm to Ms O’Hearn was probable, only that there are potential risks involved or associated with the bathtub.
The NDIA’s position on this issue was that there ‘is no guarantee, given the Applicant’s reported physical limitations, that the bathtub is not likely to cause risks of harm to herself or others’.[45] The seemingly lower threshold adopted in this proceeding by the NDIA, of a support being likely to ‘cause risks of harm’, does not reflect the requirement in rule 5.1(a) which, as detailed above, states that a support will not be funded if it ‘is likely to cause harm to the participant’, not ‘cause risks of harm’. The NDIA contended in its written closing submissions that the bathtub comes with ‘real risk’ of Ms O’Hearn falling and injuring herself or aggravating her shoulders. It referred to Ms O’Hearn not being able to consistently enter and exit the bathtub safely and the required transfers being more taxing than those required with a shower. However, even if these propositions were accepted, together with Ms Tracey’s evidence, they do not establish that it is ‘likely’ the bathroom modification will cause Ms O’Hearn harm.
[45] Ibid., page 129.
The Tribunal places strong weight on Ms O’Hearn’s own evidence of what she can and cannot do; it presented as a clear-eyed and realistic assessment of risk borne out from decades of dealing with such matters. She told the Tribunal that the transfers up and down the bath steps are safer and easier for her than the sideways transfers she performs regularly in daily life, and that latter movement would be performed onto a permanent and solid transfer platform. If Ms O’Hearn was having a bad day she would use a bath board to access the shower component of the bathtub and other measures have been factored in such as non-slip tiles, and the use of other aids. Additionally, Ms Baumer has observed Ms O’Hearn perform the required movements and transfers on both a good and bad day. Moreover, Ms Tracey accepted that there was a reduced risk of injury exiting the bathtub, although of course it would not be entirely eliminated.
While the use of any bath is not free from risk, especially for someone with acknowledged balance and strength issues, the Tribunal is not satisfied that the risk rises to the level whereby it is likely the support will cause harm to Ms O’Hearn. That is, on the available evidence, the Tribunal finds that it is not more than probable that the support will cause her harm. Accordingly, the Tribunal is not satisfied that rule 5.1(a) of the Supports Rules is engaged in this proceeding such that the support would not be provided or funded under the NDIS.
CONCLUSION
Having considered all of the evidence, the Tribunal is satisfied that the requested support, being the bathroom modification, meets the requisite criteria to be approved as ‘reasonable and necessary’ under the NDIS Act and for inclusion in the statement of participant supports in Ms O’Hearn’s NDIS plan.
DECISION
The Tribunal sets aside the decision under review pursuant to subsection 43(1)(c) of the AAT Act and makes a decision, in substitution for the decision so set aside, to approve a statement of participant supports that specifies:
(a)the Applicant’s NDIS plan is to be self-managed;
(b)the date by which the CEO of the Respondent must reassess the plan pursuant to Division 4 of the NDIS Act is 12 months from the date of this decision; and
(c)the reasonable and necessary supports that will be funded under the NDIS are as follows:
Core supports:
1. Low-cost AT - Communication or Cognitive Support – up to an amount of $1,500;
2. Low-cost AT - Personal Care And Safety – up to an amount of $1,300;
3. Low-cost AT - Hearing Related AT – up to an amount of $100;
4. Pool hire fees for twice weekly physiotherapy sessions;
5. Continence aids – up to an amount of $16,717.49;
6. House And/or Yard Maintenance - 2 hours per fortnight (total of 52 hours per year);
7. Assistance With Self-Care Activities - Standard - Weekday Daytime – 6 hours per week, for 52 weeks (total of 312 hours per year);
8. Assistance with Personal Domestic Activities - 4 hours per week for 52 weeks (total of 208 hours per year);
9. Medium Term Accommodation – 21 days;
10. Access Community Social And Rec Activities - Weekday Daytime – 140 hours, consisting of:
xi.2 hours per week for 52 weeks (total of 104 hours per year);
xii.6 hours per week for 6 weeks (total of 36 hours); and
1. Transport funding (level 3) to be paid into Ms O'Hearn's nominated bank account on a fortnightly basis;
Capacity building supports:
1. Assessment Recommendation Therapy or Training – Physiotherapist – 244 hours per year, consisting of:
ii.156 hours of physiotherapy to be used flexibly in land and water-based environments;
iii.52 hours for physiotherapist travel;
iv.30 hours at the physiotherapy rate for a 6-week intensive rehabilitation period;
v.6 hours for report writing;
1. Provision of Hearing Services by an Audiologist – 6 hours; and
2. Support Coordination Level 2: Coordination of Supports 36 hours per year;
Capital supports:
1. The bathroom modifications that are the subject of the quote from FTCI Pty Ltd dated 18 July 2023;
2. Repairs and Maintenance – Wheeled Mobility Major (quote required);
3. Minor repairs and maintenance of Assistive technology equipment – up to an amount of $500;
4. Postural Support Using Air Floatation or Automated Pressure Management – up to an amount of $1,220.21;
5. The vehicle modifications that are the subject of the quote from Problem Management Engineering Pty Ltd dated 27 February 2023;
6. Hearing aids – up to an amount of $5,060.00;
7. Building Works Project Management;
8. The following kitchen modifications:
9. The carport modifications that are the subject of the quote from Leadercrete dated 26 January 2023.
(d)Pursuant to subsection 43(6) of the AAT Act, the Tribunal’s decision is to take effect on the day that is 21 days after the day of the Tribunal’s decision.

I certify that the preceding 127 (one hundred and twenty seven) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.

.............................[SGD].................................
Associate
Dated: 15 December 2023

Date(s) of hearing:

12 October 2023

Date final submissions received:

Counsel for the Applicant:

14 December 2023

Mr Thomas Wood

Solicitor for Applicant:

Counsel for the Respondent:

Ms Leah Siebert, Northern Territory Legal Aid Commission

Mr Matthew Kenneally

Solicitor for Respondent:

Ms Sharon Taylor, Moray & Agnew Lawyers

Date(s) of hearing:	12 October 2023
Date final submissions received: Counsel for the Applicant:	14 December 2023 Mr Thomas Wood
Solicitor for Applicant: Counsel for the Respondent:	Ms Leah Siebert, Northern Territory Legal Aid Commission Mr Matthew Kenneally
Solicitor for Respondent:	Ms Sharon Taylor, Moray & Agnew Lawyers