Oczenaschek and National Disability Insurance Agency
[2024] AATA 2889
•12 August 2024
Oczenaschek and National Disability Insurance Agency [2024] AATA 2889 (12 August 2024)
Division:National Disability Insurance Scheme Division
File Number(s): 2023/0582
Re:Eric Oczenaschek
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Senior Member K Buxton
Date:12 August 2024
Place:Brisbane
The decision under review is set aside and the decision is remitted for reconsideration with a direction that the Applicant’s approved statement of participant supports specifies:
a)From the date of this decision:
a.Funding for Medium-term Accommodation for 90 days; and
b.Funding of $4,506.30 for stage one ILO planning and exploration.
b)That the reasonable and necessary supports otherwise specified be replicated until the reassessment date no later than four months from the date of this decision.
...............................[SGD]....................................
Senior Member K Buxton
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – reasonable and necessary supports – where the Applicant is an accepted participant of the National Disability Insurance Scheme – funding for medium-term accommodation – individualised living option (ILO) –
decision under review set asideLegislation
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020 (Cth)Cases
BIJD and National Disability Insurance Agency [2018] AATA 2971
HVMQ and National Disability Insurance Agency [2024] AATA 86
Madelaine and National Disability Insurance Agency [2020] AATA 4025
McGarrigle v National Disability and Insurance Agency [2017] FCA 308
Young and National Disability Insurance Agency [2014] AATA 401REASONS FOR DECISION
Senior Member K Buxton
12 August 2024
INTRODUCTION
The Applicant, Mr Eric Oczenaschek, is a 59-year-old man who became a participant in the National Disability Insurance Scheme (“NDIS”) in 2020. He has sought review of decision by a delegate of the Chief Executive Officer (“CEO”) of the National Disability Insurance Agency (“the Respondent”) dated 19 January 2023 (“the internal review decision”) made pursuant to subsection 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) (“the Act”).
The Applicant has a complex medical history and a range of physical and psychosocial disabilities. Although he has other health conditions, his impairments arise primarily from the symptoms of his:
(a)Major Depressive Disorder;
(b)Generalised Anxiety Disorder;
(c)Narcissistic Personality Disorder;
(d)Antisocial Personality Disorder; and
(e)Blindness in his Left Eye.
On 22 November 2022, a delegate of the Respondent approved a statement of participant supports (“SPS”) for the Applicant under subsection 33(2) of the Act. The plan provided for $171,553.33 in funded supports for a 12-month period, including $50,054 in capacity building supports, $121,501.22 in core supports including:
(i)21 hours per week (3 hours per day) of assistance with personal domestic activities (plan-managed) - $83,877,41;
(ii)10 hours per week of access to community at the weekday daytime rate for social, community and civic participation - $32,328.40.
The Applicant requested an internal review of the decision and, on 19 January 2023, a delegate decided on internal review under subsection 100(6) of the Act to affirm the original decision. On 25 January 2023, the Applicant made an application to the Tribunal for review of the internal review decision. A hearing took place over three days, on 1 and 2 May and 19 June 2024, using the Microsoft Teams platform. In arriving at its decision, the Tribunal has taken account of the documentary evidence, the oral evidence given at the hearing and the written submissions of the parties, including those provided following the hearing.[1]
[1] Respondent’s written submissions dated 4 July 2024; Applicant’s written submissions dated 5 July 2024.
SCOPE OF THIS REVIEW
The Applicant represented himself during the hearing and in the processes leading up to hearing. The Applicant lives in his motor vehicle and manages his impairments and health conditions in this setting, with some connections to medical practitioners, allied health practitioners and the community. Prior to the hearing, the Respondent noted that the Applicant had identified in his material the following supports for consideration by the Tribunal as potentially reasonable and necessary supports to be included in his statement of participant supports pursuant to subsection 34(1) of the Act and the Rules:
(a)specialist disability accommodation (SDA);
(b)funding for supported independent living (SIL) or an individualised living option (ILO) package.
The Respondent submitted that the Applicant did not meet the requirements for SDA/SIL. The Respondent submitted that the following alternative supports were reasonable and necessary under subsection 34(1) of the Act:
(a)assistance with daily living (ADL), comprising:
(i)ADL support for 5 hours per weekday at a ratio of 1:1;
(ii)ADL support for 2 hours per Saturday at a ratio of 1:1;
(iii)ADL support for 2 hours per Sunday at a ratio of 1:1; and
(b) social, community and civic participation (SCCP) support, comprising 12 hours per week of 1:1 community access.
In late 2023, the Tribunal remitted the decision to the Respondent for reconsideration pursuant to section 42D of the Administrative Appeals Tribunal Act1975 (Cth) (AAT Act). On 6 December 2023, a new decision was made approving a statement of participant supports that provided for a reassessment date of 6 June 2024 and funding to continue on the same basis (pro-rated for the further six-month period). [2]
[2] Exhibit 2.
In May 2024, immediately following the first days of the hearing, the Tribunal again remitted the decision to the Respondent for reconsideration pursuant to section 42D of the AAT Act so that additional funding could be made available to the Applicant as a result of the Respondent’s updated position following the evidence taken on those days. On 16 May 2024, a new decision was made approving a statement of participant supports that provided for a reassessment date of 16 May 2025 and funding additional funded supports for that 12-month period, in the total sun of $213,597.44.[3]
[3] Exhibit 3, Plan breakdown dated 16 May 2024.
When compared with the previous SPS, this decision provided for additional funding in the following areas:
· Assistance with daily living (ADL), comprising:
oADL support for 5 hours per weekday at a ratio of 1:1;
oADL support for 2 hours per Saturday at a ratio of 1:1;
oADL support for 2 hours per Sunday at a ratio of 1:1.
· SCCP support, comprising:
o12 hours per week of 1:1 community access.
· Support coordination, as follows, to replace current support coordination funding:
o80 hours of level two-support coordination;
o40 hours of level three-support coordination.
· Additional 6 hours for psychology;
· Additional 30 hours for mental health occupational therapist.
The Applicant chose to proceed with his application for review of this decision. The Applicant accepted that he did not meet the criterial for SDA but stated that he wished to rely on the expert evidence he had obtained in support of funding for SIL or ILO.
In order to determine whether a support should be included in the statement of participant supports approved in the Applicant’s plan under subsection 33(2) of the NDIS Act, the Tribunal must have regard to the matters set out in subsection 33(5) of the NDIS Act and determine whether it is satisfied that the support is a “reasonable and necessary support” in accordance with the criteria in subsection 34(1) of the NDIS Act. The Tribunal is to be positively satisfied that the criteria have all been met in order to approve that disputed support for inclusion in the Applicant’s statement of participant supports.[4] Each of the following criteria for supports, set out in subsection 34(1) of the NDIS Act, must be satisfied for a support to be funded:
[4] BIJD and National Disability Insurance Agency [2018] AATA 2971, at [50].
(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.
The word “reasonable” is informed by the criteria set out in subsection 34(1) of the NDIS Act, although its meaning is not exhausted by these factors. In relation to how the CEO’s function works in practice, Mortimer J said in McGarrigle: [5]
…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… then the question for the CEO (or the delegate or Tribunal) is whether he or she is satisfied that support, as identified, is reasonable and necessary for that particular participant.
[5] McGarrigle v National Disability and Insurance Agency [2017] FCA 308, at [93].
Subparagraph 33(5)(d) of the NDIS Act requires the CEO to have regard to any criteria prescribed by the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (“the Support Rules”) in relation to the manner in which the reasonable and necessary supports will be funded. The Support Rules made pursuant to subsections 34(2) and 35(1) of the NDIS Act provide further guidance with respect to the assessment of reasonable and necessary supports that will be funded. Pursuant to section 209 of the NDIS Act, the Support Rules are a legislative instrument and therefore have statutory force. In this case, the relevant provisions are included within Rule 3 and 5:
Value for money
3.1 In deciding whether the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support, the CEO is to consider the following matters:
(a)whether there are comparable supports which would achieve the same outcome at a substantially lower cost;
(b)whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long‑term benefit to, the participant;
(c)whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long-term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);
(d)for supports that involve the provision of equipment or modifications:
(iii)the comparative cost of purchasing or leasing the equipment or modifications; and
(iv)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).
General criteria for supports
5.1 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.
EVIDENCE
Both the Applicant, and various experts who have provided insights into the Applicant’s support needs, have identified a number of supports which may benefit the Applicant but for which funding is not currently provided. It is a matter for the Tribunal to consider the evidence available at the time of hearing and determine, afresh, whether the statement of participant supports in the reviewable decision specifies all reasonable and necessary supports or whether it should be re-made to include additional specified supports. There was a significant volume of documentary evidence before the Tribunal, and oral evidence taken during the hearing.
The question for the Tribunal, as to whether additional funded supports ought to be specific, will be answered by reference to the available evidence, and can conveniently be dealt with under the categories of SDA, other accommodation supports including SIL or ILO, and any other supports reasonable and necessary supports.
The Applicant’s plan contains the following goals:
·I would like to improve my communication skills so that I am more able to communicate effectively with people in everyday life;
·I would like to improve my emotion regulation skills so that I am more able to manage my emotions and behaviours in my day to day life;
·I would like to improve my social skills so that I am more able to make and maintain social connections and friendships in my everyday life;
·I would like stable and permanent housing that suits my needs which will then hopefully allow me to find stable employment that is meaningful to me.
The following evidence is relevant to the issue of the Applicant’s reasonable and necessary supports to be funded.
The Applicant
The Applicant prepared a number of statements of his lived experience. In his statement dated 4 May 2023 the Applicant stated:
(a)He has been living in his car for 16 years and experiences discomfort and pain as well as the impact of frequently disturbed sleep.
(b)The Applicant’s Case Worker, Luke, from the Salvation Army Doorways programme has supported him for the last 9 years to secure suitable accommodation with Housing NSW or Community Housing. He had not at that date been able to secure suitable housing and has recently been advised by a Housing Manager that his needs are too high level, and therefore that he requires support and accommodation through the NDIS.
(c)Whilst he has NDIS funding for core support and Level 3 Support Coordination, he has not been able to find reliable support.
(d)He has support of the NDIS funded Behavioural Support Therapist, who has assisted with linking him to supports at times, and to liaise regarding his psychosocial disability.
(e)He is unemployed as he has received the disability support pension for 14 years. He has been involved with a Disability Employment Services provider for four years.
(f)The Applicant is seeking to have Supported Independent Living funded in his NDIS plan. Due to his disabilities, he requires a high level of care support from experienced care workers in stable accommodation that is accessible.
(g)His current living arrangement does not meet his basic human rights. Living in his car does not provide a suitable environment for care provision to occur, and further increases the impairment from his disabilities.
(h)NDIS have funded a large amount of core support, however as he does not have suitable, accessible stable accommodation, this care provision cannot be provided appropriately.
(i)If NDIS were to fund Supported Independent Living, he would be able to establish a healthy routine with support of care staff, including good nutrition, support to ensure he takes his medication regularly, care support to assist with accessing the community for activities or appointments, as well as improved sleep and personal hygiene. This would have a positive impact on overall wellbeing and improve his quality of life. At the time of giving the statement, the Applicant had no hope for the future and no ability to see a positive outcome for his mental health.
(j)The Applicant is not able to access suitable accessible accommodation through other avenues, such as Housing NSW, as they have indicated that his care needs are too high and require to be provided in an NDIS care setting, where he can receive support for his disability needs.
In his statement dated 4 October 2023 the Applicant stated:
(a)The Applicant set out the circumstances of his long history in relation to seeking subsidised and community housing. He has been offered housing but, for various reasons, has not moved into the houses made available to him. Some housing has not been suitable and sometimes the Applicant’s mental health has prevented him from taking up the offer of housing.
(b)He has been unable to establish a long-term relationship with a suitable support co-ordinator as they would be unreliable, not professional or not be compatible with the Applicant.
In an interaction note of a telephone conversion between a delegate of the Respondent and the Applicant, which took place around the time of the reviewable decision on 19 January 2023, the Applicant provided information about his access to a specialist support co-ordinator for whom he had funding in his NDIS plan. The note, written by the delegate and addressed to an NDIS planner, Sue, refers to this support as “SSC” reads, in part:[6]
“He did advise that he ceased services with Alex, his Specialist Support Coordinator. This was just before Christmas 2022, and he attempted to connect to a new SSC who did not show up to their 25.1.2022 (sic) appointment, therefore Eric is not interested in SSC at this time. I encouraged him to contact you Sue, if he changes his mind and needs support to find a SSC.”
[6] T Documents p. 190; HB p. 193.
The Applicant gave evidence during the hearing. He stated that he did not have sufficient NDIS funding available to him to obtain independent living. He stated that his “needs” are classified as “level 3 high needs”, and that he requires that level of assistance from a specialist support co-ordinator and has not been able to obtain that support consistently. This was a result of a lack of available level 3 support co-ordinators, rather than an issue with his available NDIS funding for this support, although he noted that he had used nearly all of his core support budget.
The Applicant discussed SDA, SIL and ILO and accepted that he did not qualify for SDA. He stated that he wished to live independently, and without other people, and wished to be supported to do so.
The Applicant discussed his homelessness, and the negative impact this has upon his ability to regulate his mental health and physical health, to connect with all necessary services and to accept a placement for community housing. The Applicant stated that he has recently been able to engage with a new psychiatrist but that many services with which he wished to engage in his area were already at capacity.
The Applicant noted that he required a section 48 re-assessment in relation to recent medical developments as he now has tremors in his hands and may be developing Parkinson’s Disease. He stated that the NDIS refuses to consider this new information in a change of circumstance re-assessment.
During cross-examination, the Applicant stated that he was not presently engaged with a psychologist or occupational therapist and stated that there were three reasons for this. Firstly, he had not been able to access funding, secondly, his therapy team had moved on to different roles and he had not connected with new therapists and thirdly, his mental health was not stable and he needed to stabilise before engaging in therapy.
The effect of the Applicant’s evidence is that his mental (and physical) health is such that he needs to find stable housing in order to become well enough to engage in necessary therapies, but due to his disabilities he needs to engage with therapies in order to find stable housing. The Applicant accepted various past events in which he did not or could not take up offers of housing. These examples about past events are consistent with the evidence given during the hearing about his past and current mental health challenges.
The Applicant stated that he has spent time in the high intensity mental health unit and did not wish to be “locked up again” and needed help as finding a home was beyond his current skill set. The Applicant also stated that his doctor had indicated that he may have Parkinson’s disease, and that his future support needs may differ as a result of new symptoms that have not been the subject of this review. He has sought the support of his complex needs case manager at the NDIA, Mr Thomas Lowe, but stated that he had been “turned away”.
An email exchange between Mr Lowe and the Applicant in January 2024[7] indicated that, whilst Mr Lowe did offer assistance to the Applicant to access supports, he also refused to properly escalate a request by the Applicant that the Respondent undertake a reassessment of his support needs (under section 48 of the NDIS Act) on the basis of the Applicant’s changed circumstances while a review about an earlier statement of participants supports was the subject of a review by the AAT. This decision amounts to a refusal to undertake a review under section48 of the NDIS Act and such refusal is a reviewable decision under subsection99(1) of the Act. The Applicant has expressed his dissatisfaction with the refusal on numerous occasions and it appears that these expressions amount to a request for an internal review of that decision. No special words or form is needed and it is clear that the Applicant has consistently disagreed with this decision. Whilst this particular issue falls outside the scope of the Tribunal’s jurisdiction in this review, the Tribunal notes that the Respondent is obliged to discharge its statutory functions with respect to the Applicant’s request to review a reviewable decision. It has been, and remains, open to the Respondent to elect to commence a reassessment under section48 of the NDIS Act of its own motion if it wishes to redress the conduct of Mr Lowe and relieve the Applicant from the pursuit of his further review rights.
[7] Emails dated 4 and 5 January 2024 between Mr Lowe of the NDIA and the Applicant discussing a request for a change of circumstances reassessment.
The Applicant was cross-examined about his history with both Mr Lowe and his various support co-ordinators and it was suggested to him that this history demonstrated that the Applicant has refused to properly engage with his supports. The effect of the Applicant’s evidence was that he was often presented with a basis to mistrust service providers. Mr Lowe had incorrectly stated that the Applicant could not avail himself of his statutory right to request a review under section 48 and he was not supported, through any subsequent communications with the Respondent, to assert review rights in relation to the refused to undertake a section 48 review.
The Applicant stated that his support co-ordinators had engaged in a range of conduct which the Applicant regarded as unacceptable and which raised concerns as to whether the conduct may lead to allegations of misuse of his NDIS funds for which he would be responsible. Others had tried to force him into accommodation options without first building trust and rapport. More recently, a psychologist and a support co-ordinator had rejected his requests for support on the basis that they did not have adequate skills or experience to deal with the Applicant’s complex mental health needs. The Applicant stated that, in order to engage with service providers including a specialist support co-ordinator to assist with his housing needs, he would need to find someone that he could trust who is “above board”. The Tribunal notes that the evidence as to the Applicant’s engagement with both Mr Lowe and his support providers is consistent with behaviours and communications reasonably to be expected from a person with his psychosocial disabilities, particularly when he is experiencing escalation, rather than a deliberate refusal by the Applicant to engage with these individuals.
The Applicant stated that he would be interested in exploring the funded support short-term or medium-term accommodation if he could be located in a home for 90 days before securing more permanent accommodation but would not be interested in taking up short-term accommodation if it were only for 20 days or so because of the undesirability of having to move twice. He noted that his core funding may provide flexibly for funding of this nature, and the Respondent accepted that there was no separate provision for STA in the Applicant’s current funded supports, so that STA would need to be funded instead of other funded supports, rather that in addition to them, if he utilised funding in this way.
The Applicant accepted that he had declined offers of housing in the past, although he questioned the accuracy of all the information put to him about those instances and noted that he had some adverse finding overturned in the relevant NSW Tribunal. He had previously rejected offers of housing without a garage for his vehicle because this vehicle had been his home for many years and he was concerned to keep it safe. However, the Applicant stated that he is now less concerned about his vehicle and more concerned to obtain suitable housing. He has also rejected housing in the city as he requires access to his local community and supports. The Applicant is still on the waitlist for NSW public housing but no longer has access to a rental subsidy.
The Applicant was asked whether there was any reason why he could not now take up the recommendations of Ms Curdie, Occupational Therapist, for occupational therapy (OT) and psychology support in assessing housing options, given that the plan now includes 30 hours of OT support and an additional 6 hours of psychology supports for that purpose. The Applicant stated that he is willing to engage with those supports but cannot find those therapists. He stated that the issue in this context was not the level of funding but that the Applicant needed practical help with the housing issue. This needed to be solved first as access to therapists was more difficult given the Applicant was not housed and his mental health was not regulated.
It was put to the Applicant that he should engage with the complex needs team and the NDIA in order to find a support co-ordinator and should then engage with that support co-ordinator to find psychology supports to assist to find housing. The Applicant stated that, without being housed, he could not receive the help he needs. He has been living on the streets for 18 years and has additional physical health issues now that required him to manage medication, including some which required refrigeration, coupled with his complex mental health needs. His experts have stated that he requires a package of either SIL or ILO but all say that he needs a significant level of help in excess of what he is now receiving. He stated that he feels overwhelmed.
Ms Brittany Jenkins
Ms Brittany Jenkins, Behaviour Support Manager at the ORS Group, is a qualified social worker and provided a Behaviour Support Plan for the application dated 30 August 2022.[8] The plan addresses primarily the Applicant’s need for in-person supports, particularly to assist him in his routine and to support his emotional and social wellbeing. Ms Jenkins proposed the following elements of the plan:
1. Increasing activities, routine and community participation will reduce Eric’s behaviours of concern regarding maladaptive coping skills.
2. Building coping strategies and emotional regulation techniques will help reduce Eric’s behaviours of concern regarding maladaptive coping skills.
3. Increasing social skills reduce Eric’s behaviours of concern and increase overall wellbeing.
[8] HB, p. 95.
Ms Jenkins made further recommendations as follows:
Psychological Capacity Building: Eric has a history of suicidal ideation, anxiety and major depression. He would benefit from ongoing psychotherapy to help them better manage the symptoms of his mental health conditions. Of note is the fact that Eric has been homeless for 14 years, and will need considerable psychological support to adjust to a new living environment and the challenges this poses. He has had success with psychologists in the past and it is recommended that the therapies employed by these practitioners be revisited. Eric has received treatment in the past through the mainstream health care system, but due to limitations in the number of service provisions and the limited number of visits to psychology, and physiotherapy from the Medicare stream, Eric has found it difficult to maintain the continuity of care that he requires. He has also utilised the inpatient unit at Nepean several times to seek treatment for his mental health. Eric will benefit from ongoing continuity of care from a group of health professionals that whom he can form a strong therapeutic relationship. For Eric’s future needs, he will benefit from having ongoing support from the Disability sector, NDIS, which focus on investing in people with disability early to ensure their goals are being met. Due to his impairments being permanent causing significant disability, Eric requires reasonable and necessary support needed to enjoy an ordinary life. He will require assistance to achieve his goals and to improve his outcomes later in life. This may include greater independence, community involvement, employment and improved wellbeing.
Podiatry Services: Eric reports experiencing significant back and leg pain due to his inability to access podiatry services and products. The driving force behind Eric’s challenging behaviour is related to the amount of physical pain he is in. It is highly recommended that Eric receives the funding required to access these goods and services as a reduction in physical pain will result in a reduction in adverse behaviours. Having access to podiatry services will reduce Eric’s chances of falling of which he is at high risk and will also promote his willingness to participate in physical activity thus improving his mental and physical health.
Exercise Program and ongoing Physiotherapy: Eric struggles with all physical movement and describes a constant state of lethargy, immobility and chronic pain. He would greatly benefit from a supervised exercise program by an Exercise Physiologist and ongoing physiotherapy to help build his movements, increase his muscle tone, and build his fitness, strength and overall feelings of well-being. A visual representation of each exercise will also be required to allow his support workers to implement the exercises with Eric. It is recommended physiotherapy will also assist with activities of daily living and building muscle strength to work towards his goal of finding housing that they can feel safe in and also to re-enter the workforce.
Support Workers: Eric reports feeling isolated and in need of developing his communication skills. He currently receives no companionship and has difficulty solving problems. He is also unlikely to participate in enjoyable activities alone, such as going to the movies. Having support workers several times per week would allow Eric to work towards his goals of better communication skills, providing him with the opportunity to improve his social skills and practice self-regulation strategies. Support workers will be key in implementing a lot of the strategies outlined in this plan, especially in developing social skills. It is recommended that Eric receive support workers at least three times per week in four-hour periods. With Eric having the provisions of NDIS support, it will alleviate his impairments in his capacity for communication, social interaction, learning, mobility, self-care and self-management. This will then enhance his overall functional capacity.
Supported Independent Living (SIL): With access to therapeutic support including communication aids, equipment for personal care, and a place of safety including a bed, this will assist Eric in coping better and being able to participate in everyday activities. He will be able to accept and receive appropriate assistance for Supported Independent Living. This can enable his participation in the community, social, economic and daily life activities; to also help with household tasks to allow Eric to maintain his home environment When Eric does move into accommodation, he will require funding for assistance in maintaining his house. He will likely require assistance in maintaining a good diet, food preparation also and medication management. Eric requires 1:1 daily support to assist him with his emotional needs, the reduction of emotional outbursts and physical aggression, build trust and confidence and assist with his day-to-day living such as taking medication. Eric’s current accommodation is limiting his mental health progression due to various factors mentioned in this report.
Pain Specialist: Eric reports being in a constant state of chronic pain. It is therefore recommended that he be assessed by a pain specialist and that his pain medication be reviewed and modified as necessary. Decreasing Eric’s pain will help decrease his challenging behaviours and increase his physical, mental and emotional well-being.
Implementation/training on the Behaviour Support Plan and ongoing support: ORS will provide training/ongoing support to staff on how to implement the strategies outlined in this Behaviour Support Plan. ORS will also provide individual intervention to Eric to assist him in reducing his challenging behaviours and teaching him appropriate replacement behaviours and coping mechanisms. As part of the behaviour support process, ORS will work with Eric’s support and allied health team and collect data on each of the behaviours whilst regularly assessing the progress being made towards achieving the plan goals. Where necessary, ORS will work with Eric and the staff to adjust the strategies as needed. ORS is currently providing this service and will require 30 hours of additional funding under Improved Daily Living at his next plan review for required service delivery.
Evaluation of the Behaviour Support Plan: Eric’s Behaviour Support Plan will need to be formally reviewed in 12 months. ORS will require 10 hours under Improved Daily Living to provide this service.
Ms Jenkins provided a further report dated 18 April 2023, in which she recommended that the Applicant be funded for housing in which he could live with a supported independent living package. She provided a further report dated 2 October 2023, in which she made similar recommendations, further proposing:
(a)Funding for Accommodation and Increased 1:1 Support: Since working with Eric, he has experienced inconsistent and unstable housing options that have resulted in a dramatic decline in his mental health evidence that he requires a supportive network. This network should require mental health Support Workers, Behavioural Support Practitioners and consistently Supported Independent Living Housing. Without having this collective approach Eric will face hospital admissions which will significantly impact his mental health further. Eric requires urgent funding for a suitably supported accommodation placement. Recently, Eric has been highly distressed, has become agitated and has had limited opportunities to communicate with others due to a lack of availability of staff servicing. Eric would strongly benefit from having extra funding for increased 1:1 support due to his current vulnerabilities in being able to engage with the community, lack of social skills and decision-making skills due to his diagnosis and long-term homelessness. In addition, Eric has recently experienced health concerns and has shown he is unable to make healthy living decisions without the assistance of Support Workers such as storing medication, healthy meal preparation and shopping. He may also require additional support with physical activities such as cleaning, laundry, accessing the community and self-care tasks. Eric’s current situation has exacerbated his perceived sense of instability and perpetuated his feelings of mistrust and abandonment towards others. Subsequently, Eric engaged in suicidal ideation. These unforeseen changes and traumatic experiences have hindered the therapeutic process as most of the time spent with the Behaviour Support Practitioner was helping Eric prepare for these instances over the phone. Increased support is essential to ensure that Eric is safe, a safety plan is in place and to monitor Eric’s mental health and behaviours to ensure he poses no harm to himself or others. Eric reports feeling isolated and in need of developing his communication skills. He currently receives no companionship and has difficulty solving problems. He is also unlikely to participate in enjoyable activities alone, such as going to the movies. Having support workers several times per week would allow Eric to work towards his goals of better communication skills, providing him with the opportunity to improve his social skills and practice self-regulation strategies. Support workers will be key in implementing a lot of the strategies outlined in this plan, especially in developing social skills. It is recommended that Eric receive accommodation so that his support workers can help to engage him in his daily living skills. With Eric having the provisions of NDIS support, it will alleviate his impairments in his capacity for communication, social interaction, learning, mobility, self-care and self-management. This will then enhance his overall functional capacity. When Eric does move into accommodation, he will require funding for assistance in maintaining his house. He will likely require assistance in maintaining a good diet, food preparation also and medication management. Eric requires 24/7 support to assist him with his emotional needs, the reduction of suicidal ideation and verbal aggression, build trust and confidence and assist with his day-to-day living such as taking medication. It is envisioned that with this level of support, Eric will be able to learn daily functioning skills and appropriately manage his behaviours of concern. Current support is only sufficient in ensuring Eric’s basic appointments are met via transportation. His current accommodation is limiting his mental health progression due to various factors mentioned in this report.
(b)Behaviour Support Implementation: The Behaviour Support Practitioner will provide training/ongoing support to Support Workers, as well as other allied health professionals on how to implement the strategies outlined in the proposed Behaviour Support Plan. The behaviour support practitioner will also provide individual intervention to Eric to assist him in learning more effective ways to communicate his needs and manage his behaviour. As part of the behaviour support process, the behaviour support practitioner will collect data on each of the behaviours and regularly assess the progress being made towards achieving the plan goals. Where necessary, the Behaviour Support Practitioner will work with Eric and his support to adjust the strategies as needed. Due to his long-term use of maladaptive behaviours coupled with cognitive deficits, it is proposed that Eric will need regular support in developing new coping strategies. In addition to this, Eric’s Behaviour Support Plan will need to be formally reviewed, particularly in the instance he moves into SIL. Eric has experienced significant trauma throughout his life which is likely contributing to his current behaviours of concern. Behaviour Support services will focus on – unpacking his past from his current state, setting goals around interacting with others, helping clarify thinking/feeling/doing and building distress tolerance skills so Eric regains a sense of control, and developing skills to manage his mental health. This will require 40 hours and Eric’s Behaviour Support Plan will need to be formally reviewed in 12 months. ORS will require 10 hours under Improved Daily Living to provide this service.
Ms Jenkins did not give evidence during the hearing.
Ms Sarah Stewart
Ms Sarah Stewart, Psychologist, wrote a report dated 8 June 2023,[9] in which she made the following findings:
(a)The Applicant has previously undiagnosed PTSD, Paranoid Personality Disorder, Antisocial Personality Disorder, Major Depressive disorder of moderate severity and Generalised Anxiety Disorder.
[9] HB,p. 447.
Ms Sarah Stewart wrote a further report (jointly authored with Georgia Holloway), dated 7 July 2023,[10] which was described as a cognitive assessment of the Applicant. The report traverses the Applicant’s history, frequent presentations to the Emergency Department of his local hospital and his physical and mental health issues. The following conclusions are expressed:
[10] HB,p. 420.
(b)Eric was self-reported and observed to be living in his car due to homelessness. His care was observed to be filled with personal belongings to a degree that restricts his mobilising inside of the vehicle and vision while driving. The Salvation Army has supported Eric to seek suitable housing for several years; however, his mental health conditions and cognitive impairments likely impact his ability to identify, pursue and obtain suitable housing;
(c)As to the Applicant's currently funded support worker assistance, (which was assumed to be a total of 5 hours of 1:1 support on weekdays and 3 hours of 1:1 support on weekends), the current support worker assistance ratio appears inadequate to meet Eric’s disability support needs due to the perpetual cycle between his cognitive impairments and his mental health (psychosocial disability). Specific to his cognitive impairments, Eric is likely to experience difficulty with learning and remembering instructions, information and appointments due to attention, working and verbal memory impairments. Eric’s impairment in inhibition may impact his ability to remain engaged and complete instructions, tasks and appointments in their entirety, as inhibition influences self-discipline. Further, as detailed in this report, the negative feedback loop between Eric’s cognitive impairments and psychosocial disability is likely to significantly impact his ability to socialise, obtain and maintain employment and accommodation independently, engage with service providers and communicate effectively. Challenges in these areas historically are hypothesised to have impacted Eric’s perceived self-efficacy, resulting in emotional reactivity and non-compliance. Thus, increased Support Worker assistance is hypothesised to assist Eric in building his self-efficacy and independence by providing hands-on, direct support to improve his quality of life and capacity in the aforementioned functional areas.[11]
(d)Ms Stewart stated that the Applicant would have significant risks if left unsupervised for parts of the day and nights and that he required overnight support.[12]
(e)The Applicant would strongly benefit from psychological capacity building, focussing on Psychological Capacity Building should focus on stabilisation (by upskilling him in emotion regulation, distress tolerance, mindfulness and interpersonal effectiveness skills) and cognitive-behavioural interventions (aimed at increasing his awareness to and adaptation of his beliefs, emotions and behaviours that impact his functioning).[13]
(f)The expected goals of SIL/SDA would be focused on reducing the impact of Eric’s cognitive impairments and psychosocial disability on his functioning by increasing his social and community engagement and supporting/improving his self-management. Further information regarding Eric’s psychosocial disability and relevant evidence to support SIL/SDA is detailed in the previous report completed by the author. The below information is specific to his cognitive impairments identified in the current assessment:
(i)SIL/SDA will allow for Eric to maintain a stable, consistent environment that encompasses resources and strategies aimed to support his cognitive impairments. This may include visual prompts/reminders, routines, timers/alarms and scaffolds, maintained and implemented by Support Workers and informed by the current ORS PBS Practitioner, Brittany Jenkins. Data collection from ORS’ PBS Practitioner can assist with monitoring Eric’s use of and compliance with these resources to determine their efficacy in improving his functioning in domains impacted by his cognition (e.g., visual reminders and alarms may assist Eric in remembering appointments, increasing his engagement with services, health practitioners and employment).
(ii)SIL/SDA will allow for 24-hour support to ensure Eric has access to formal supports that can assist him to limit set, problem-solve and de-escalate when experiencing emotional distress that he is having difficulty managing or controlling due to his inhibition impairment and psychosocial disability. His supports can additionally assist to proactively plan, organise and coordinate Eric’s services (with his input) to reduce the likelihood of him escalating, building his self-efficacy and independence long-term. Data collection from ORS’ PBS Practitioner and incident reports completed by the SIL/SDA provider will assist in monitoring the frequency and intensity of outbursts for Eric over the next 12-months.
(iii)SIL/SDA will assist in supporting Eric to obtain employment, thus improving his self-management. He will be supported to attend to, learn and recall information needed to seek and maintain employment. He will also be able to receive ongoing assistance to manage his self-discipline to connect with and remain engaged with an employer through prompts, reassurance/encouragement, transportation and assistance with completing applications, interviews and training. Monitoring this outcome can occur through collecting data on Eric’s submitted job applications, attendance to training or through him gaining employment over the next 12-months.
SIL/SDA support will further assist Eric’s self-management through supporting his self-discipline and responsibility for making decisions, managing employment, finances and his tenancy. SIL/SDA support can assist with this by providing accommodation that is suitable for his disabilities (e.g., providing trusted and trained support workers, implementation of environmental, proactive and reactive PBS strategies to support cognitive impairments and reduce BOCs), thus reducing his risk of homelessness. This will, in turn, improve his financial independence. Eric will also have immediate support to make decisions of which can be impacted by his cognition and consequential emotional reaction. Monitoring this outcome can occur through incident reports, data collection and correspondence with stakeholders from the SIL/SDA provider.
Eric would benefit from SIL/SDA accommodation funding and increased 1:1 support. Eric is currently homeless due to the functional impact of his cognitive impairments and psychosocial disability and has been rejected by multiple services, including Housing NSW, to obtain suitable accommodation. Further, Eric requires 24/7 NDIS support to increase his independence and functional capacity and manage his current difficulties associated with his disabilities.
[11] HB, p. 436.
[12] HB, p. 436.
[13] HB, p. 437.
Ms Stewart gave sworn evidence during the hearing. Ms Stewart would recommend that the Applicant engage in treatment to deal with his trauma and stated that this may improve his functional capacity to engage with other supports and issues, including with his homelessness. The Applicant lacks insight as to how his behaviour is impacting himself and others. Past conflicts with hospital staff and community supports, in relation to housing and other issues, highlighted the Applicant’s difficulties with perspective taking and insight into how his behaviour may influence outcomes. He can exhibit paranoia and low tolerance of change and uncertainty. Ms Steward noted that the Applicant may be resistant to change in housing and accepted that psychotherapy and positive behaviour supports can help manage those stressors.
Ms Stewart was questioned about her recommendations in relation to SIL and SDA and her understanding of the differences between these funding supports. Ms Stewart stated that SIL had “reduced supports compared with SDA” but noted that she was a psychologist so this was not really her area. She stated that the Applicant does not have the high functional need for SDA but does need to access his funded supports. This was consistent with her observation, on page18 of second report:[14]
Notably, Eric will be unable to adequately engage in Psychological Capacity Building while
homeless, as he will not be able to engage in high-order therapeutic interventions while he is unstable and has lacking basic needs. Sessions must also be completed indoors in a safe, soundproof space to maintain confidentiality, and due to Eric’s homelessness and inability to drive long distances, providing such a space is challenging.[14] HB, p. 437, Cognitive Report by Sarah Stewart dated 7 July 2023, page 18.
Ms Stewart accepted that the Applicant does not have a disability-related need for accommodation as such, but needed a suitable place for his therapies to occur, and to engage with support co-ordination services, consistent with the observation in her report that:[15]
Eric would strongly benefit from ongoing Psychological Capacity Building to reduce his behaviours of concern and improve his overall capacity to live independently. Given that Eric’s current maladaptive beliefs and behaviours that are causing functional impairment(e.g., verbal and physical aggression, service cessation, and refusal/withdrawal) are associated with his mental health conditions, Psychological Capacity Building is fundamental in improving his functional capacity.
[15] HB, p. 437, Cognitive Report by Sarah Stewart dated 7 July 2023, page 18.
Ms Stewart stated that the Applicant would benefit from access to support for 24 hours of the day. This did not need to be 1:1 all the time but he would need 1:1 support for around eight hours per day and access to supports at other times, due to his fluctuating capacity to regulate himself when on his own. She identified the Applicant’s risk of high stress and suicidal ideation and that these hamper his ability to progress towards and maintain his goals. Ms Stewart accepted that he can be alone for periods of time, and that he can and does engage in some activities of daily life alone including showering, obtaining food etc. Despite this concession, Ms Stewart maintained that the Applicant needs 24 hours a day of access to some type of support and maintained her opinion that he needs access to overnight care. The need to improve sleep hygiene was one justification for this need.
Ms Stewart accepted that the Applicant could follow a safety plan at times of suicidal ideation and that this was a usual strategy involving medical services, support co-ordinators or other contacts to work with the Applicant at these times. Ms Stewart stated that support workers properly trained in psychotherapy and behaviour support techniques could also form part of this plan and, if such support workers were attending the Applicant for six hours a day, they would be able to assist in mitigating risk of suicidal ideation. She considered, in such circumstances, that 24/7 support may not be needed for suicidal ideation if adequate supports where in the Applicant’s plan. This level of engagement should also be utilised to assist him to locate appropriate and available housing.
Ms Stewart recommended that the Applicant engage with a disability advocate such as a social worker or caseworker to assist him in accessing services and support. He also required access to a Psychologist either through the mainstream health system or the NDIS.
Noting the Applicant’s history of refusing housing and disengaging with treatment and support co-ordinators, Ms Stewart accepted that there was always a risk that a participant would not engage, even if these supports were funded and, in the case of the Applicant, there was significant risk of non-engagement. However, she stated that the Applicant was willing and capable of participating in the process of accessing necessary supports.
Ms Stewart accepted that she was advocating for the Applicant in order to secure the maximum level of funding available to him but stated that her recommendations were nonetheless based on her assessment of the Applicant.
Ms Xia Sheng
Ms Xia Sheng is an Occupational Therapist who prepared a document entitled “ILO and SDA Report” dated 3 November 2022, and updated on 21 April 2023[16], and a report dated 2 May 2023[17] outlining the Applicant’s current support needs.
[16] HB, p. 360.
[17] HB, p. 398.
The supports recommended by Ms Sheng in her report, for a year-long period, included:
(a)Core supports for an unspecified level of support worker assistance and transport funding until an ILO plan is developed;
(b)Exploration and design of an ILO plan;
(c)Occupational therapy for regular reviews;
(d)Behaviour support - engagement with a clinician;
(e)Support co-ordination.
Ms Sheng provided an updated reported dated 29 April 2023 in which she identified the Applicant as suitable to be supported in specialist disability accommodation with ILO support and made a range of further recommendations based, apparently, on an assumption that he would be provided accommodation. In recommending SDA rather than other accommodation, Ms Sheng noted that public and social housing was in short supply with significant wait lists and that some properties were not suited or acceptable to the Applicant. She noted that difficulties with private rental homes included the Applicant’s inability to secure one of these properties, together with his home modification needs. Her further supplementary reported, dated 2 May 2023, indicated that the Applicant was receiving 5 hours of support approximately twice per week. The Tribunal notes that, at that time, his NDIS funding for supports, of over $177,000 per annum, included:
(a)21 hours per week (3 hours per day) of assistance with personal domestic activities (plan-managed) - $83,877,41; and
(b)10 hours per week of access to community at the weekday daytime rate for social, community and civic participation - $32,328.40.
It is unclear to what extent the Applicant was accessing these supports at that time.
As to ILO, Ms Sheng stated in her first report that the Applicant required funding to engage and ILO service provider to work in collaboration with him and develop an ILO service proposal.[18] In her second report, she noted that the Applicant could more readily access his capacity building supports when he is housed.[19]
[18] HB, p. 384.
[19] HB, p. 384.
In her second report, Ms Sheng did not state that the Applicant required overnight support but noted that his sleep disturbance and inability to use a CPAP machine as recommended were detrimental. She also noted that the Applicant would require emotional support when experiencing suicidal ideation.[20]
[20] HB, p. 400.
Ms Sheng did not give evidence at the hearing.
Mr Ahmad Ali, Physiotherapist
Mr Ali prepared a report dated 23 September 2022 in which he recommended that the Applicant have weekly physiotherapy sessions to improve the Applicants health and wellbeing and strength and conditioning. He did not give evidence at the hearing.
Ms Fiona Curdie, Occupational Therapist
Ms Fiona Curdie, Occupational Therapist, prepared a report dated 31 July 2023,[21] following a review of documentation provided to her by the Respondent’s legal representatives, and a supplementary report dated 5 September 2023.[22]
[21] HB, p. 612, Report by Occupational Therapist by Fiona Curdie dated 31 July 2023.
[22] HB p. 639, Report by Occupational Therapist by Fiona Curdie dated 5 September 2023.
She noted that the Applicant:
(a)Is able to complete most selfcare tasks independently within his current environmental situation. It is reported he is able to independently feed, drink, dress and shower. He requires assistance from a podiatrist to care for his feet;
(b)Has demonstrated significant resilience through an extended period of homelessness. He is able to maintain a day-to-day routine, attend to his GP weekly, collect his medication, organise a small shop, purchase food and budget on a tight financial situation;
(c)From the information available, is reportedly able to ambulate independently (sometimes with a walking stick) and drive short distances in familiar areas. He stated he has had to use public transport to attend specialist appointments, however, he will avoid this. He is able to get in and out of his car daily on multiple occasions without physical assistance from others;
(d)Did not meet the requirements for SDA. His homelessness was a primary contributing factor to his currently situation and health conditions.
Ms Curdie recommended the following supports for the Applicant:
(a)Ongoing podiatry and low cost aids to assist with his visual loss;
(b)Daily access to a support worker to facilitate day to day activities, support capacity building goals and independence for 3-4 hours per day. This would provide assistance with more difficult problem solving every day; and
(c)Support with attending medical appointments outside of his local area, community access and support to attend regular therapy (Psychology, Occupational Therapy and Physiotherapy). Possible review for walking stick.
Ms Curdie gave evidence during the hearing. She stated that she had been an occupational therapist for 33 years and was experienced in making recommendations in relation to persons with mental health needs.
Ms Curdie accepted that the situation in which, as here, she had not conducted an in-person assessment or a participant was more difficult than when reporting following her own observations. She relied on the clinician’s observations and noted where they relied on information reported to them rather than observed, and on the settings in which assessments were conducted.
Ms Curdie had determined the necessary levels of support worker assistance by considering the NDIS the domains such as mobility, self-management etc, and then determining at what level is support needed.
Ms Curdie noted that the Applicant’s suicide risk and falls risk, could be taken into account. She noted that the frequency and recency of these risks had not been clarified. It was positive that his suicidal ideation has not been followed through and that the formulation of a safety plan is he way to manage that risk. The use of support workers on a daily basis is also recommended to undertake mental health checks to see if he is declining. The Applicant’s falls risk can be mitigated by both therapy and suitable environmental factors like hobless shower, rails, the absence of stairs and use of a walking stick. Physiotherapy to work on balance and strength is also recommended. With these, the Applicant could be managed in everyday housing.
Ms Curdie noted that, in recommending SIL, this be provided in a participant’s own home, residential SIL or in supported housing. She noted that, at the moment, the Applicant doesn’t have a home and accepted that he does not require SDA but, rather, a home in which his support needs can be managed.
Ms Vella’s report[23] contained a recommendation of 11 hours per day for 1:1 support workers plus 5 hours of 1:2 for six months of intense support as there is a risk to the Applicant of re-hospitalisation and risk of harm to self or others. Ms Curdie stated that she did not agree that 11 hours per day was required and stood by her recommendation for five support worker hours each day. She stated that the Applicant does not require inactive overnight support as the participant is able to be at home alone and has been able to sleep independently. She concluded that the Applicant is able to attend to his various self-management tasks on his own during the day and does not require the support of a support worker overnight.
[23] HB, p. 507, Supported Independent Living Assessment Report dated 2 October 2023 by Occupational Therapist Hannah Vella.
As to the recommendation of Ms Stewart for 24/7 supports to break the cycle of escalation, where Applicant feels unsupported and escalates, Ms Curdie expressed the view that if a participant was at risk 24/7 of suicide they should be in hospital for intervention. Ms Curdie considered that the Applicant was not at significant risk of harm to himself but he needs daily support, structure and a house.
Ms Curdie did not consider the Applicant a candidate for SDA but noted the history trying to secure supports for the Applicant whilst the sourcing housing. She noted that the material demonstrated that the Applicant had received multiple opportunities for housing and rental subsidies in the past. She suggested that Short-Term Accommodation such as urgent emergency accommodation may be appropriate whilst the Applicant’s support coordinator worked with the Applicant to re-do housing commission application. Looking at non-SIL options would be reasonable for the Applicant.
Ms Curdie noted the Applicant’s expectations in relation to housing. She stated that it is the role of a support co-ordinator to assist with paperwork and to locate the support, for his psychologist to support the Applicant to make reasonable choices and responses to triggers, an occupational therapist to ensure that the environment is appropriate and, together, for this therapy team to manage the expectations of the Applicant in locating housing. The Applicant’s positive responses, confidence and feeling of trust and safely can be built in consultation with well-qualified experts. It may be necessary to fund an OT or psychologist to assess the accommodation, perhaps for a total of 20 hours for the assessment and weekly consultation to work through any fears on the part of the Applicant on a psychological level. Housing is a significant issue for the Applicant so Ms Curdie considered that this might require an hour and a half each week for the period of relocation of the Applicant. The first step would be to locate emergency accommodation and Ms Curdie noted that the Applicant would meet the relevant criteria. Ms Curdie was unsure what was available in his area but noted that this type of accommodation can be available quite quickly then could be provided for around three to six months. The Applicant would then be a priority for housing commission and she noted that he has had previous housing applications and rental assistance already approved.
During cross-examination by the Applicant, Ms Curdie accepted that she was not a medical practitioner, psychiatrist or psychologist. She was asked how a participant in the scheme could access assistance with issues such as housing when they were hospitalised then simply released from a high-intensity mental health without supports. Ms Curdie stated that the avenues for support to address housing were, firstly, to access temporary emergency accommodation, which she understood could be accessed for more than a few weeks and, secondly, to look at the option form the private rental market, including applying for subsidised rents. It was also appropriate to consider supported accommodation, where the accommodation portion is met from the participant’s means and other supports funded through the NDIS can be accessed. She stated that a suitable support co-ordinator could assist the Applicant through such a process.
CONSIDERATION
Specialist Disability Accommodation
The Applicant presented evidence from experts who recommended SDA. During the hearing, he accepted that he did not meet the relevant statutory test and was not seeking SDA. The Tribunal has considered the relevant evidence and arrived at the same conclusion, for the reasons that follow.
The National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020 (Cth) (“SDA Rules”), made pursuant to the powers in section 209 of the NDIS Act, provide for relevant considerations that are to be taken into account in determining whether such funding is reasonable and necessary.
The SDA Rules are to be read as a qualification to the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (“Support Rules”), which also have statutory force under section 209 of the NDIS Act, insofar as those rules determine the responsibilities of the scheme with respect of housing and community infrastructure. The starting point, in Rule 5.1(d) of the Supports Rules, is that a support will not be funded if it relates to day-to-day living costs. Rent is expressly specified as an example of such a day-to-day cost. The exception, in Rule 5.2 of the Supports Rules, is living costs, together with ancillary costs, that are incurred by a participant solely and directly as a result of their disability support needs.
Schedule 1 to the Support Rules provides guidance as to whether a support is “most appropriately funded through the NDIS” as is required by subparagraph 34(1)(f) of the NDIS Act. With respect to housing and community infrastructure, Rules 7.19 and 7.20 of the Support Rules provide:
7.19 The NDIS will be responsible for:
(a)supports to assist a person with disability to live independently in the community, including by building their capacity to maintain a tenancy, and support for appropriate behaviour management; and
(b)home modifications for accessibility for a person in private dwellings; and
(c)home modifications for accessibility for a person in legacy public and community housing dwellings on a case-by-case basis but not to the extent that it would compromise the responsibility of housing authorities to develop, maintain and refurbish stock that meets the needs of people with disability; and
(d)user costs of capital in some situations where a person requires an integrated housing and support model and the cost of the accommodation component exceeds a reasonable contribution from individuals.
7.20 The NDIS will not be responsible for:
(a)the provision of accommodation for people in need of housing assistance, including routine tenancy support and ensuring that appropriate and accessible housing is provided for people with disability; or
(b)ensuring that new publicly funded housing stock, where the site allows, incorporates Liveable Housing Design features; or
(c)homelessness-specific services including homelessness prevention and outreach, or access to temporary or long-term housing for participants who are homeless or at risk of homelessness; or
(d)the improvement of community infrastructure, ie accessibility of the built and natural environment, where this is managed through other planning and regulatory systems and through building modifications and reasonable adjustment where required.
The Support Rules, which amplify subparagraph 34(1)(f) of the NDIS Act, therefore provide that the NDIS will not fund rent, even where that would assist in those in housing crises, unless the need arises solely and directly as a result of their disability support needs. The Department of Housing and, in the Applicant’s case, community organisations, have a role in such service delivery to the Applicant. Therefore, the evidence before the Tribunal about the Applicant’s long-standing homelessness and difficulties he has had to confront in sourcing suitable do not address directly the relevant statutory criteria for access to funding for SDA. The SDA Rules stipulate the criteria for the provision of accommodation for participants who require specialist housing solutions, and who meet the criteria set out in those rules. Where those criterial are not met, the proper application of Rule 5.1(d) of the Support Rules provides that rent will not be funded under the as it relates to day-to-day living costs.
Section 11 of the SDA Rules provides:
11 Eligibility to receive support for specialist disability accommodation
A participant is eligible to receive support for specialist disability accommodation under the National Disability Insurance Scheme if the CEO is satisfied that:
(a)the participant:
(i) has an extreme functional impairment (see section 12); or
(ii) has very high support needs (see section 13); and
(b)the participant meets the SDA needs requirement (see section 14).
Section 12 of the SDA Rules provides:
12 When a participant has an extreme functional impairment
1A participant has an extreme functional impairment if:
(a)the impairment results in extremely reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities:
(i) mobility;
(ii) self-care;
(iii) self-management; and
(b)the participant has a very high need for person-to-person supports in undertaking the activity even with assistive technology, equipment or home modifications.
2For the purposes of assessing whether a participant has an extreme functional impairment, the CEO may have regard to:
(a)any assessment or examination conducted in relation to the participant, including any assessment or examination requested by the CEO under paragraph 36(2)(b) or 50(2)(b) of the Act; and
(b)the daily support requirements of the participant; and
(c)any assessment tool specified by the CEO for the purposes of this paragraph; and
(d)any other matters that the CEO considers appropriate.
Section 13 of the SDA Rules provides:
13 When a participant has very high support needs
1A participant has very high support needs if:
(a)the participant has lived in specialist disability accommodation for extended periods and living in that accommodation has impacted on the capacity of the participant to transition to alternative living arrangements and support; or
(b)the participant has a very high need for person-to-person supports, either immediately available or constant, for a significant part of the day and either:
(i) there are limitations in the availability, capacity or capability of the participant’s informal support network or risks to its sustainability; or
(ii) the participant is at risk or poses a risk to others, and that risk could be mitigated by the provision of specialist disability accommodation, having regard to the participant’s response to risk and the interaction of the participant with the environment.
2For the purposes of assessing whether a participant has very high support needs, the CEO may have regard to:
(a)any assessment or examination conducted in relation to the participant, including any assessment or examination requested by the CEO under paragraph 36(2)(b) or 50(2)(b) of the Act; and
(b)the daily support requirements of the participant; and
(c)any assessment tool specified by the CEO for the purposes of this paragraph; and
(d)any other matters that the CEO considers appropriate.
Section 14 of the SDA Rules provides:
14 When a participant meets the SDA needs requirement
1A participant meets the SDA needs requirement if, when compared to other supports alone, combined specialist disability accommodation and other supports would:
(a)better assist the participant to pursue the goals, objectives and aspirations set out in the participant’s statement of goals and aspirations; and
(b)be more effective and beneficial, where possible, in:
(i) mitigating or alleviating the impact of the participant’s impairment upon the participant’s functional capacity; and
(ii) preventing the deterioration of the participant’s functional capacity; and
(iii) improving the participant’s functional capacity; and
(iv) maintaining or promoting the participant’s ability to build capacity, including in the medium or long-term; and
(v) maintaining or promoting the participant’s opportunities to develop skills; and
(c)if the participant has very high supports needs—be more effective and beneficial, where possible, in:
(i) reducing the participant’s future needs for supports which might be required due to inappropriate accommodation; and
(ii) assisting the participant to pursue goals related to life opportunities and life transitions; and
(d)if the participant has an extreme functional impairment—be more effective in providing the participant with stability and continuity of support; and
(e)represent better value for money.
2For the purposes of paragraph (1)(e), regard must be had to the following matters if the participant has very high support needs:
(a)whether combined specialist disability accommodation support and other supports would be likely to substantially improve the life stage outcomes for, and be of long-term benefit to, the participant;
(b)the cost of providing the participant with supports needed to live in accommodation other than specialist disability accommodation, taking into account:
(i) whether those supports may be shared with other participants; and
(ii) limitations of the participant’s informal support network.
The Respondent does not dispute the fact that the Applicant is functionally impaired in a range of areas, and that he requires the range of supports that have been funded to date but submits that he does not meet the criteria that would permit the funding of SDA. The Applicant accepts that this is a category of supports that he is unlikely to meet. However, the Tribunal will also consider the evidence of the allied health professionals, some of whom raise SDA in their consideration of reasonable and necessary supports for the Applicant.
The starting point for consideration is the eligibility criteria in section 11 of the SDA Rules which requires the participant to demonstrate either extreme functional impairment (section 12 of the SDA Rules) or very high support needs (section 13 of the SDA Rules) and to meet the “needs requirement” in section 14 of the SDA Rules.
The functional impairment test in section 12 of the SDA Rules must relate to the domains of mobility, self-care or self-management, and must qualify as “extreme”. The deliberate deployment of the word “extreme”, when contrasted with the word “substantially” used elsewhere in the statutory scheme, must be given a meaning consistent with a more serious, or heightened, level of impairment. The word “extreme” is to be given its ordinary meaning, being “of the highest degree”.[24]
[24] Macquarie Dictionary (online, 11 May 2022) ‘extreme’ (noun – def 8).
As to mobility, the Applicant often spends entire days at present without support, other than a cane when it is utilized. Further, he regularly attends the local shops, medical and allied health appointments in his local area and drives his vehicle to some of these locations. There is a suggestion in the material that the Applicant’s vision may no longer be sufficient for him to safely drive, and that the crowding of his belongings in his vehicle is a further impairment to his vision when driving. However, there is no definitive material before the Tribunal that the Applicant cannot drive, and he apparently still does so every day as part of his daily routine.
Given that the Applicant has physical conditions which cause him pain and restriction, and is at risk of injury from falls, the Tribunal accepts that the Applicant’s mobility is impaired. However, the concept of mobility, as it is used in the legislative setting of the NDIS, does not extend to the ability of a participant to move around in the community for the purpose of accessing service but, rather, how they might mobilise once they have reached that service.[25] This test is acutely relevant when the context in which the assessment of participant’s functional impairment to mobilise is part of the consideration of access to SDA. The level of impairment of mobility in the community, particularly when that is said to be demonstrated by a risk to the participant’s safety from falling, will not be addressed by the grant of SDA. The support of SDA does not address that aspect of the impairment save for the prospect of risks on ingress and egress from the participant’s home. The evidence supports the Applicant’s strong preference for a step free entrance to a home, but he is able to move from the front to the back of his vehicle and access both each day. The evidence demonstrates that the Applicant has been able to adapt and maintain a level of independence in his mobility despite his physical impairments. Accordingly, the Tribunal is not satisfied that her function impairment as to mobility is “extreme”.
[25] Madelaine and National Disability Insurance Agency [2020] AATA 4025, [104] – [105].
As to self-care, the Applicant does require help in this area, and would no doubt benefit from more assistance than he has currently been accessing. The Applicant’s own evidence is that he attends to his own self-care and has a routine for doing so which he has developed to utilize facilities available to him in the community. He is able to obtain his own food and eat a meal out once a week. The Tribunal accepts that the Applicant does require support with his self-care. However, in circumstances where the Applicant has funded supports for self-care that he has, to date, not been utilizing those, and where he has become independent is some of those tasks, the Tribunal is not satisfied that his function impairment as to self-care is “extreme”.
Similarly, as to the Applicant’s self-management, he may require assistance, but not assistance of the highest degree. The Applicant does not meet the functional impairment test in section 12 of the SDA Rules.
The support needs test in section 13 of the SDA Rules requires the participant’s need for person-to-person supports to qualify as “very high”. The Applicant’s evidence demonstrates that he can, and often does, spend entire days without any support. The expert evidence discussed in the following paragraphs is consistent with a finding that the Applicant’s current funding for five hours of this type or care each weekday, and two hours on weekends, is reasonable and necessary support for self-care at the moment.
The evidence before the Tribunal as to the level of active and inactive support required by the Applicant differs. He has recently been funded by the Respondent for a total of 41 hours per week, or about six hours per day, for both personal care and community access. Ms Stewart recommended six to eight hours per day (together with the safety plan for his overnight care discussed below). Ms Curdie gave evidence to support this level of funding and other occupational therapy evidence suggested at least this level of funding was required, and more may be required. It is not easy to reconcile the evidence of all of the experts as to whether a total of 41 hours in funded care each week is sufficient, not least because the Applicant has not yet been receiving support at this level. The Tribunal concludes from the available evidence that the currently funded level of active and inactive support is reasonable and necessary and, until the Applicant has trialled support at this level the Tribunal is not satisfied that additional hours should be funded. This is an issue that can be revisited on reassessment of the Applicant’s needs in the future.
The Tribunal notes the inconsistency in the expert evidence about the Applicant’s need for overnight support. Those experts who recommended around the clock supports, or inactive overnight support, did so primarily because the Applicant has, at time, expressed suicidal ideation and escalating behaviours. In the past, he has been admitted to a secure mental health ward and the Tribunal accepts the evidence of Ms Curdie that, if a participant was at risk 24/7 of suicide, hospital intervention would be appropriate. During the hearing, both Ms Stewart and Ms Curdie agreed that a safety plan should be in place which includes a list of contacts whom the Applicant could contact when escalating or when experiencing suicidal ideation, including on-call individuals who do not necessarily need to be support workers, but could include a support coordinator and his medical and allied specialists. The Applicant does not currently receive overnight support and did not indicate that he wished to receive such support. There is insufficient available evidence from which the Tribunal could draw the conclusion that the Applicant requires around the clock or overnight supports. It follows that the Tribunal is not satisfied that the Applicant’s need for person-to-person supports are “very high” as he does not require immediately available or constant supports for a significant part of each day.
As the Tribunal is satisfied that the Applicant has not satisfied the requirement in sections 12 or 13 of the SDA Rules, the Applicant cannot access SDA, and it is unnecessary to determine whether he meet the requirements of section 14 of the SDA rules.
The Applicant is homeless and the Tribunal accepts that he would be better able to receive his supports in a permanent residence. He has not, to date, been able to secure government or community housing, or a private rental with the assistance of a government rebate, despite having qualified for such assistance. However, as the Tribunal noted in HVMQ and National Disability Insurance Agency,[26] the fact that he has access to inadequate support through these mechanisms does not mean that the NDIS must fill that gap in terms of the accommodation itself.
[26] [2024] AATA 86, [132]; See also Young and National Disability Insurance Agency [2014] AATA 401 [41].
Accommodation supports – SIL, ILO, STA and MTA
The Applicant is homeless and sleeps and keeps his belongings in his vehicle. He does not contend that he meets the criteria for specialist disability accommodation. The Applicant instead submits that insufficient support is provided to him to locate and maintain a tenancy. The Tribunal accepts that the Applicant’s significant mental health impairments are a barrier to both locating and maintaining a tenancy, and that it is reasonable and necessary that funded supports assist him in these tasks.
The Applicant has engaged various support co-ordinators over time. These support co-ordinators have, during their tenure as the Applicant’s provider, sought to connect the Applicant with accommodation, including through public housing. To the extent that the Applicant’s capacity to find accommodation is disability-related, he has access to funded supports that can be utilised to engage supports to assist in his search and in maintaining his tenancy. However, these supports have not been effective and beneficial to the Applicant in achieving the relevant goal.
The Applicant’s situation has become complicated by his inability to retain support co-ordinators, support workers and psychologists to work with him to secure accommodation. The documentary evidence demonstrates that he has terminated the service of some of these supports, and others have indicated that they are no longer available to work with the Applicant. The Applicant’s oral evidence suggests strongly that trust is important to him and that he places a great deal of weight on whether he regards the actions of a service provider as “above board”. The continuity of provided supports is an issue which is beyond the scope of the Tribunal on review. The Applicant sought to rely on his experts who supported his request for SIL. He submitted that this evidence demonstrated that this was a reasonable and necessary support.
In the Respondent’s closing submissions, it was contended that supported independent living was not a reasonable and necessary support for the Applicant. The Respondent referred to the Supported Independent Living Guideline dated 20 June 2022 (SIL guideline), which stated that “supported independent living is for people with higher support needs, who need some level of help at home all the time”, and further provides that SIL may be appropriate where a participant needs:
(a)active disability support for more than 8 hours per day to complete daily activities; and
(b)some level of support for the other hours – that is, you need support for 24 hours per day, 7 days per week, including overnight support.
With the Tribunal’s findings (set out above) about necessary and reasonable levels of active and inactive support in mind, the Applicant’s care requirements do not meet the levels identified in the operational guidelines for access to SIL and there is insufficient evidence before the Tribunal that this is a reasonable and necessary support. The Tribunal notes that various experts engaged by the Applicant recommended that SIL was a reasonable and necessary supports, and that the Applicant urged the Tribunal to accept these recommendations. However, the factual assumptions underpinning those recommendations have not been made out by the available evidence and the Tribunal concluded that it is not proper to fund SIL for the Applicant in his current circumstances.
The Respondent helpfully identified the following key components of the current Individualised Living Options guideline (ILO guideline), published 5 January 2023, which indicates that ILO is intended to provide supports for participants to explore and design a support package, including by utilizing a combination of formal and informal supports, to support a participant to live in their chosen home environment. It is for supports in the home and does not include social and community participation supports. It is funded in two stages, with the first being a stated “exploration and design” stage, which provides funding to an applicant to work with a support provider (as well as any family, friends) to design their ILO package. A participant can conduct this stage themselves. The result of this stage is a service proposal which is returned to the Agency for assessment.
The second stage is deciding which supports to include in the plan. This can include funding for primary supports who live with the participant and provide the main supports at home (such as with personal care, emotional support and helping with safety at home) and supplementary supports, that provide a wide range of additional supports, including for when primary supports are unavailable.
The Respondent submitted that the ILO guideline indicates that ILO “works best” for those participants who require at least six hours of supports per day. The guideline notes that if participants do not require this level of support, or require a lot more support, then other options may meet a participants’ needs better. However, for those who need less than six hours of support at home each day, the guideline also considers whether the participant “needs help with problem-solving at other times”. The Tribunal notes that the Applicant requires assistance from both support workers and his allied health team to regulate and self-manage, and Ms Curdie recommended that such supports continue. In any event, the guidance in relation to a participant requiring six hours of care daily is merely that and is not expressed in mandatory terms.
The evidence before the Tribunal is that the Applicant requires about six hours of support per day and most, but not all, of this support is intended to be provided in the home. Only 12 hours per week of his funded support worker hours are for community access. He may or may not require additional support worker hours related to his self-care, but this will not be known until he has trialled support at this level. The Tribunal does not accept the Respondent’s submission that the Applicant’s needs are not a good fit for ILO, or that in so finding, the Tribunal is “invalidating” the ILO guideline. The guideline is drafted in discretionary terms and the Applicant’s needs dovetail appropriately with those published policy guidelines. It is difficult to conceive of circumstances that are a better fit than those of the Applicant to receive a package of supports designed to explore how he may live in a home environment, particularly given he has not lived in a home for 18 years and would benefit greatly from support designed to ease this transition. That is particularly so where that support of stage one of ILO funding may include support for locating a suitable home environment, supporting the Applicant to secure that home, and setting up supports that he is to receive in that home.
The Respondent does not contend that the ILO package would not be effective and beneficial for the Applicant. Rather, the Respondent contends that the Applicant already has funding that can be used flexibly to source supports, and that funding through an ILO package would, ultimately, lead to less rather than more flexibility.
In relation to ILO, the Applicant submitted that, despite have access to funding, he has been unable to maintain funded supports and is now not receiving the supports for which he has funding. He gave evidence and made submissions about the barriers to obtaining supports without funding in an ILO (or SIL) package. The Respondent submitted that the Applicant did not give evidence about why service providers have not been prepared to assist him in the absence of ILO in his plan. However, during the hearing, the Applicant plainly stated that he had been told he had insufficient funding and could be assisted by certain service providers only if he had an ILO (or SIL) package. The Respondent did not challenge this evidence during the hearing or adduce evidence to the contrary. There is no basis to question or reject this evidence and the Tribunal accepts it. The Applicant therefore appears to be prepared to accept less flexibly packaged supports if they are delivered in a way that makes them suitable and accessible to him.
It is for the Tribunal to determine whether there is a level of ILO support, or a package of supports, that would be reasonable and necessary for the Applicant to access now. The Respondent confirmed in its written submissions that, at this stage, the Tribunal could specify funding for only the design and exploration stage. This is funded in bands[27], but the basic amount is up to 30 hours (currently $3,004.20–$4,506.30, depending upon remoteness of area). The Respondent noted that, if funding for ILO stage one was to be specified, this band would likely be most appropriate because the Applicant knows what support he needs (acknowledging there is a difference between the parties as to what should be funded), does not want to move to a home too far from his current area and (it appears) is capable of making his own decisions. This suggested approach appears reasonable, and as the Applicant lives outside a major city and in a community where both housing and supports are scarce, it is reasonable and necessary to specify funding at the upper end of this range.
[27] 30 hours, 50 hours or 100 hours, depending on the decision-making capacity of the participant and some other factors.
The Tribunal is satisfied that funding for stage one ILO planning and exploration, in addition to his current supports, is not duplication. ILO exploration is intended to consider how the Applicant will receive supports in his future home, and his current support co-ordination and capacity building budget deals with his ongoing needs in the meantime. Stage one ILO is consistent with the Applicant’s goals and is likely to be effective and beneficial to explore and consider his ongoing support needs. Funding for stage one ILO will assist the Applicant in exploring the provision of supports in the home as he moves towards his goal of locating and securing long-term housing within his own means. This is consistent with the recommendation of Ms Sheng who stated, in her first report, that the Applicant required funding to engage with an ILO service provider to work in collaboration with him and develop an ILO service proposal,[28] and is also consistent with Ms Curdie’s evidence that housing was a “significant issue” for the Applicant and a priority that needed to be addressed urgently so that the accommodation cost can be met from the participant’s means and other supports funded through the NDIS can be accessed by him. Both witnesses noted the Applicant would need to rely on others to assist him to secure housing and co-ordinate support to be delivered in a home, should he secure one.
[28] HB, p .384.
The proposed funding relates to the Applicant’s psychosocial disabilities as the evidence clearly demonstrates that the Applicant has neither the communication skills nor the capacity to maintain relationships in order to explore and plan for his future needs without specialised support. The relatively modest cost of this planning function represents value for money in the sense that the Applicant’s suite of needs can be considered holistically. It may be that, once this support is received and utilised, some other supports can be streamlined as a result of the plan created through stage one funding.
It is through the stage two funding that the Applicant is be facilitated in his social and economic participation and stage one funding is a necessary pre-curser to this. It may be determined that a stage two ILO package of home-based supports should replace the Applicant’s more flexible current core funding. It is not clear what the ILO proposal will be, or to what extent funded supports which can currently be used flexibly will be replaced, or incorporated into a more inflexible, but predictable, package of ILO supports. Delivery of stage two ILO is also likely to be more readily facilitated upon the Applicant securing housing so that the supports can be delivered in his home. However, even if the Applicant is still using his car as his home, that should not be a barrier to the Applicant receiving appropriate supports that are reasonable and necessary. The content of any stage two ILO package can be determined only after the stage one process and is therefore beyond the scope of this decision.
There is no issue in this case as to expectations of families, carers, informal networks and the community to provide such supports, and no basis to conclude that ILO funding is more appropriately funded or provided outside the NDIS.
The Tribunal is satisfied that funding for stage one ILO satisfies the requirements of subsection 34(1) of the NDIS Act, and the relevant considerations in the Support Rules. The Applicant’s SPS should specify funding of $4,506.30 for stage one ILO planning and exploration. The intent is that this is to be undertaken in consultation with the Applicant, in order that his future care needs for independent living be planned, and that plan be submitted to the Respondent so that any appropriate ILO stage two funding can be specified in a future SPS.
No allowance is made in the Applicant’s existing plan for short-term accommodation (STA) or “respite”. The Respondent submitted that there was insufficient information to demonstrate that additional funding for STA was a reasonable and necessary support for the Applicant.
Relevant operational guidelines as to the use of STA include the following statements:
(a)Short-term accommodation may suit your needs if your usual support network isn’t available.
(b)If you already have funding in your Core budget, you can use this for short-term accommodation.
There was little evidence before the Tribunal about STA and how it might be reasonable and necessary for the Applicant. The Tribunal can understand as a general proposition that supported respite accommodation may be required to provide the Applicant with an opportunity to have a break from the management of his own conditions to avoid falling into a further mental health crisis and hospitalisation. However, the Applicant indicated that he would not wish to take up accommodation if he had to move from it after only a few days or weeks.
Having regard to this evidence, the Tribunal concludes that, if the Applicant decided that he wishes to do so, STA can be funded through the Applicant’s current flexible funding and that it is not reasonable and necessary to provide additional funding that the Applicant is unlikely to use.
No allowance is made in the Applicant’s existing plan for medium-term accommodation (MTA). The relevant operational guidelines as to the use of MTA include the following statements:
(a)Medium-term accommodation is one of the home and living supports we may fund. It’s funding for somewhere to live if you can’t move into your long-term home because your disability supports aren’t ready.
Funding for medium term accommodation
(b)We usually fund medium-term accommodation as a once-off support.
As neither party had expressly addressed the evidence before the Tribunal relevant to the Applicant’s medium-term support needs in their closing submissions the Tribunal invited the parties to do so. The Applicant had stated during the hearing that he would not wish to take up accommodation on a temporary basis if it were only for a few days or weeks, but would do so for a longer period, prior to transitioning to a permanent home. The Applicant provided further submissions including the following information:[29]
(a)He is unable to access SIL or ILO unless it is expressly included in his plan;
(b)NDIS providers have stated that they are not able to provide like supports as the specified funding is not in his plan;
(c)If he uses his funding for housing and this is not approved he has been informed that he will be pursued by the NDIS fraud team;
(d)Therefore, the Applicant remains on the street with no housing and remains unable to access various services;
(e)The Applicant sought to rely on documents and evidence, including from Medical Records and allied health practitioners, stating that he needs to be housed.
[29] Written submission of the Applicant by email dated 24 July 2024.
The Applicant further submitted that he had been discriminated against on the basis that he could not access some services in the same way as participants who were housed and referred to ongoing overwhelm with his mental health issues.
The Respondent provided the following further submission:[30]
With respect to MTA supports, the Respondent contends that accommodation supports of any kind (including MTA) do not meet, at least, s34(1)(f) of the National Disability Insurance Scheme Act 2013 (Cth) due to the NDIS not being responsible for accommodation for those in need of housing assistance, homelessness-specific services including homelessness prevention and outreach, or access to temporary or long term housing for participants who are homeless or at risk of homelessness: r7.20(a) and (c) of the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth).
[30] Written submission of the Respondent by email dated 31 July 2024.
The Tribunal does not consider that the provision of MTA amounts to shifting responsibility for the Applicant’s homelessness to the Respondent, nor is it akin to the payment of rent or other household expenses which are excluded from the scheme. MTA is a disability support which is specifically contemplated to provide, on a one-off basis, transitional accommodation whilst the participant awaits the delivery of other supports. If the function of developing and implementing accommodation support through ILO is expected to lead to the Applicant being supported to identify and move into a long-term home where his supports can be delivered, then this aspect of the guideline set out above, with respect to MTA, would be met. Funding for 90 days of MTA would allow for the Applicant to transition to long-term housing and have a safe space to receive therapy and to participate in the planning of his ILO supports while he was also supported to explore permanent housing options that would be funded through his own means and where his funded personal supports can be accessed. Further, living in medium-term accommodation would provide stability for the Applicant, for his current supports and for his stage one ILO planners to determine the Applicant’s future needs.
Ms Curdie’s evidence was relevant to the disability-related needs of the Applicant in finding a home. She stated that it is the role of a support co-ordinator to assist with paperwork and to locate the support, for his psychologist to support the Applicant to make reasonable choices and responses to triggers, an occupational therapist to ensure that the environment was appropriate and, together, for this therapy team to manage the expectations of the Applicant in locating housing. The Tribunal also notes Ms Curdie’s evidence to the effect that the Applicant’s positive responses, confidence and feeling of trust and safety can be built in consultation with well-qualified experts. In order to build confidence and trust, the Applicant needs to be able to receive these supports and to be in a stable environment conducive to building relationships and making informed decisions with appropriate support. Funding for 90 days of MTA would allow for the stage one ILO process to be conducted in a way that was meaningful, with the Applicant’s supports being provided a home, albeit that MTA would not be the longer-term home of the Applicant. This is also consistent with the recommendations of Ms Sheng who noted, in her second report, that the Applicant could more readily access his capacity building supports when he is housed.[31]
[31] HB, p. 398.
Ms Curdie noted that the Applicant would meet the relevant criteria for emergency accommodation and considered this a “first step” for the Applicant. Ms Curdie accepted that she was unsure what was available in the area but noted that this type of accommodation can be available quite quickly, then could be provided for around three to six months. Ms Curdie noted that the Applicant would then be a priority for housing commission and she noted that he has had previous housing applications and rental assistance already approved.
The Tribunal has already made clear that NDIS funding is not to be utilised for everyday expenses, or to address shortfalls in other systems such as government and community housing. MTA can be funded for the Applicant, in the unique circumstances of his case, only if it meets the requirements of subsection 34(1) of the NDIS Act.
The Tribunal is satisfied that funding for MTA, is not duplicative of any funded support. The Applicant is not able to receive and maintain his supports, partly because he cannot receive those in secure housing and partly because his mental (and physical) disabilities cannot be stabilised. The Applicant’s inability to secure housing arises from his psychosocial disabilities. Funding for MTA therefore relates to the Applicant’s psychosocial disabilities.
MTA is consistent with the Applicant’s goals as it is a step along the way to securing planned supports and becoming housed and is likely to be effective and beneficial in stabilising the impacts of his disabilities in the medium-term. Funding for MTA during the stage one ILO planning process is an adjunct to that funded support, which the Tribunal has found will assist the Applicant in exploring the provision of supports in the home as he moves towards his goal of locating and securing long-term housing within his own means and of receiving his funded personal supports.
The cost of MTA represents value for money in the sense that it supports the Applicant, who is in a dysregulated mental state, to stabilise and advocate for his longer-term support needs, and build relationships with those who will assist him in the planning and arrangement of these supports. It is intended to be a one-off cost and the same outcome cannot be achieved by any alternative support. There was no evidence and no submissions before the Tribunal to suggest otherwise.
Stabilising the Applicant’s psychosocial disabilities through the use of MTA is likely to facilitate the Applicant’s social and economic participation in the medium-term and is a component of the reasonable and necessary supports (together with ILO and his existing funded supports) to his accessing such participation in the longer-term. There is no issue in this case as to expectations of families, carers, informal networks and the community to provide such supports, nor that MTA is more appropriately funded or provided outside the NDIS.
The Tribunal is satisfied that MTA satisfies the requirements of subsection 34(1) of the NDIS Act, and the relevant considerations in the Support Rules and that it is not excluded from the supports that may be funded under the scheme. The Applicant’s SPS should specify funding for 90 days of MTA with the intent that this be accessed in conjunction with the Applicant’s funded stage-one ILO planning and exploration.
Conclusions as to supports
The Tribunal has concluded that, in addition to the supports currently funded, the Applicant’s approved statement of participant supports should specify the following supports:
a)Funding for Medium-term Accommodation for 90 days; and
b)Funding of $4,506.30 for stage one ILO planning and exploration.
This is a prospective change to current support arrangements and therefore the date of effect of this specification is the date of this decision. The reasonable and necessary supports otherwise specified in the reviewable decision should be replicated until the reassessment date.
Re-assessment
The decision under review (as remade on 16 May 2024) identifies a re-assessment date of 16 May 2025. However, the Respondent has submitted that reassessment should take place in six months, having regard to the Applicant’s previous request to attempt reassessment on the basis of Parkinson’s disease symptoms.
Preparation of the statement of participant supports is to be undertaken “with” the participant before it is approved “by” the CEO in the proper discharge of that statutory function (subsection 33(2) of the Act) and to ensure that the Applicant is able to exercise choice and control in the pursuit of this goals and the planning and delivery of his supports.[32] The Tribunal considers that the Applicant would benefit from consultative planning and re-assessment of his needs before his next statement of participant supports is prepared with him and approved by the CEO, and notes that these needs may change if the Applicant is living in a home rather than in his vehicle. The Tribunal also notes that some time should be allowed for the stage one ILO exploration and planning to occur and for the access to experience his current supports whilst living in MTA. It follows that reassessment should occur no later than 120 days from the date of this decision, allowing for some time to locate both MTA and the ILO service provider.
[32] NDIS Act s.118(1).
The Tribunal finds, therefore, that the decision under review, which is the operable approved SPS with effect from 22 November 2022, as reconsidered in accordance with the 16 May 2024 decision, is to be set aside and reconsidered in accordance with the directions specified in the Tribunal’s decision and finds that it is proper for the re-assessment date to be four months from the date of the Tribunal’s decision.
DECISION
The decision under review is set aside and the decision is remitted for reconsideration with a direction that the Applicant’s approved statement of participant supports specifies:
a)From the date of this decision:
a.Funding for Medium-term Accommodation for 90 days; and
b.Funding of $4,506.30 for stage one ILO planning and exploration.
b)That the reasonable and necessary supports otherwise specified be replicated until the reassessment date no later than four months from the date of this decision.
I certify that the preceding 128 (one-hundred and twenty-eight) paragraphs are a true copy of the reasons for decision of Senior Member K Buxton.
...............................[SGD].......................................
Associate
Dated: 12 August 2024
Date(s) of hearing: 1 and 2 May 2024, 19 June 2024 Date of final submissions:
Applicant:
31 July 2024
Eric Oczenaschek
Solicitors for the Respondent: Mills Oakley (and previously Minter Ellison)
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