Palin and National Disability Insurance Agency - [2023] AATA 94

Palin and National Disability Insurance Agency [2023] AATA 94 (17 January 2023)
Division:GENERAL DIVISION
File Number(s): 2022/2482
Re:Robert Palin
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

Decision
Tribunal:Senior Member P Goward
Date:17 January 2023
Place:Sydney

The Tribunal varies the internal review decision dated 25 March 2022 to include the following supports (7), (8), (9), (10), (12), (13), (14) and (15) for the reasons set out below.
.............................[SGD]...........................................
Senior Member P Goward
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME (NDIS) – significant vision impairment – additional lighting – home modification – legal fees and stamp duty – whether support is reasonable and necessary – jurisdiction under the NDIS Act – whether funding for support is consistent with relevant law and policy
Legislation
Administrative Appeals Tribunal Act 1975
National Disability Insurance Scheme Act 2013
National Disability Insurance Scheme Rules 2016
Cases
McGarrigle v National Disability Insurance Agency [2017] FCA 308 (28 March 2017)
Rogers and National Disability Insurance Agency [2022] AATA 2809 (26 August 2022)
Secondary Materials
National Disability Insurance Scheme-Operational Guidelines
Blind Citizens Australia (webpage)
Wet AMD: 20 Home Modifications for People with Vision Loss by Quinn Phillips and medically review by Sanjai Sinha reviewed on 8 September 2020
Lighting in and around the Home guidelines prepared by Thomas Pocklington Trust Guidelines updated in September 2021.
REASONS FOR DECISION
Senior Member P Goward
Introduction

The Applicant is a 66-year-old man with significant vision impairment. He is legally blind and his condition has been described by his ophthalmologist as “advanced progressive glaucoma and… high myopia (now pseudophakia)”. He reports 76% vision in his right eye and 5% vision in his left eye and his vision is expected to deteriorate further. He has also been diagnosed with bilateral Carpel Tunnel Syndrome but has now limited the home modifications in dispute to those sought on the basis of his vision impairment.
The Applicant purchased a house in Beaumaris, Victoria (Beaumaris Property), in June 2020.
The Applicant was accepted into the National Disability Insurance Scheme (NDIS) on 15 July 2020 on the basis of his vision impairment. He contracted to build his current house on the Beaumaris property in December 2020 once the existing house had been demolished.
The Applicant contracted the construction company Metricon, to build the Whittlesea 29 MK 2 design on the Beaumaris Property site.
The Applicant engaged an Occupational Therapist (OT), Mr Rory Olver (Mr Olver), National Occupational Therapy (later National 360), to conduct an assessment of the modifications necessary to address his impairments in accordance with the advice of the Respondent. Covid restrictions in place at the time prevented Mr Olver from assessing the Applicant in his rental property located in Torquay VIC (Rental Property), but photographs of the Rental Property were provided which were tendered as evidence in this hearing. Mr Olver completed a Complex Home Modification Assessment Template dated 12 March 2021 (Mr Olver Report).
The Beaumaris Property was modified in accordance with the advice provided in the Mr Olver Report.
Metricon built to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Palin and National Disability Insurance Agency

Details

AGLC: Palin and National Disability Insurance Agency [2023] AATA 94
Case: [2023] AATA 94
Decision Date: 17 January 2023

CaseChat Overview and Summary

This matter concerned an application by the Applicant, who has significant vision impairment, for funding for home modifications under the National Disability Insurance Scheme (NDIS). The dispute arose when the National Disability Insurance Agency (NDIA) refused to fund certain proposed modifications, including additional lighting and stamp duty on a new property. The case was heard by P Goward SM in the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the requested home modification supports were "reasonable and necessary" in accordance with the criteria set out in section 34(1) of the NDIS Act. This involved assessing whether the supports would assist the participant to pursue their goals, facilitate social or economic participation, represent value for money, be effective and beneficial, take into account what families and carers can provide, and be most appropriately funded through the NDIS rather than other systems. The Tribunal also considered whether the costs were attributable to the participant's disability support needs and not merely day-to-day living costs, as outlined in Rule 5.1 of the NDIS Rules.

The Tribunal reasoned that while the NDIS is responsible for funding home modifications for accessibility under Rule 7.19, the assessment of "reasonable and necessary" supports requires adherence to the five conditions stipulated in Rule 2.3. The NDIA contended that the supports did not represent value for money, a key criterion. The Tribunal ultimately varied the NDIA's internal review decision, finding that certain requested supports, specifically items (8), (9), (10), (13), (14), and (15), were reasonable and necessary and should be funded under the Applicant's NDIS plan. However, the Tribunal found it had no jurisdiction to order funding for stamp duty on land.

Orders

Orders of the court

Stamp duty on land - $50,681.08

No jurisdiction

Background

Background to the litigation

The Tribunal must decide whether the requested home modification supports are reasonable and necessary in accordance with the criteria set out in s34(1) of the NDIS Act. Background In the Applicant’s Chronology of Home Modification process provided to the Tribunal, upon admission to the NDIS, the Applicant claims he met with Mr Ron Nelson, Local Area Coordinator for the Respondent in July 2020. This is accepted by the Tribunal. The purpose of the meeting was to discuss home modifications to the Beaumaris Property which would assist with his safety and independence, consistent with his NDIS plan. As a result, funds were provided by the NDIS for the Applicant to identify the home modifications to his new build which would assist the Applicant with his sight impairment. The proposed modifications were to be based on the assessment of an OT. The Applicant appointed Mr Olver to develop an application for home modification requirements. Mr Olver also liaised with the Applicant’s builder, Metricon, over the design period, to ensure the proposed changes to the house’s standard design were consistent with his recommendations. Mr Olver submitted a detailed application “with extensive supporting evidence to NDIS for approval” in June 2021. The Applicant paid for the house construction of the Beaumaris Property. In the Applicant’s request for home modifications funding of June 2021, the Applicant reports a history of falls and bumping into objects and walls, including the rangehood at his Rental Property. The Applicant contacted the Respondent several times to ask about approval for funding of the home modifications. The Applicant became frustrated with the lack of response from the Respondent and complained to the Tribunal. This is not disputed. It appears the Respondent only considered the Applicant’s application when the Applicant applied for reimbursement. The Respondent advised the Applicant that his proposed modifications would not be funded on 25 November 2021 (Original Decision). The Applicant moved into the Beaumaris Property, being the completed and modified house, in November 2021. The Applicant currently lives with his wife, Nadia, who is his full-time carer, in the Beaumaris Property. He advised Ms Van-Houston, in October 2022, that he does not cook but is otherwise able to mobilise safely inside and outside the house, and to care for himself. He is currently able to read and write with standard reading glasses. The Applicant relies on his wife for all carer support and social access. Despite the applicant’s impairments, Ms Van-Houston, describes the Applicant as moving easily around the Beaumaris Property. The advice of the Applicant’s treating medical specialist, most recently Dr Trent Roydhouse, in a report of 23 March 2022 (Dr Roydhouse Report), advises there is a “high risk of snuff out”, that is, reportedly, total loss of residual vision. The Dr Roydhouse Report documents the Applicant’s deteriorating eyesight in recent years. He is classified by his ophthalmologist as legally blind. The Tribunal accepts that the Applicant’s condition is permanent.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Requested Supports (17) and (19) are no longer being sought by the Applicant and accordingly were not considered as part of this application.Conclusion The Tribunal varies the internal review decision dated 25 March 2022 to include the following as reasonable and necessary supports to be funded under the Applicant’s NDIS plan. Accordingly, the requested supports (8), (9), (10), (13), (14) and (15) are to be funded. The internal review decision is otherwise unaltered. The Tribunal finds the following in respect of each requested supports:

Ratio Decidendi

Legal Principle Established

Rule 2.3 requires that five conditions are to be met for a support to be considered reasonable and necessary; as follows:(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 or 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 NDIS, and is not more appropriately funded or provided through other service systems. Other considerations under the NDIS Act. Other considerations under the NDIS Act The Respondent contends that s34(1)(c) of the NDIS Act (that the support represents value for money) and Rule 2.3(c) value for money, which may be assessed under Part 3 of the Rules 3.1, Value for Money, are not met in the case of the Applicant. The Respondent also applies Rule 5.1, which sets out when a support will not be provided or funded under the NDIS Act. Relevantly Rule 5.1 excludes a support if: (b)it is not related to the participant’s disability; or … (d)it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs. The day-to-day living costs referred to in paragraph 5.1(d) do not include the following (which may be funded under the NDIS if they relate to reasonable and necessary supports): (a)additional living costs that are incurred by a participant solely and directly as a result of their disability support needs; Since the disputed supports in this matter relate to the funding of home modifications, the Respondent acknowledges Rule 7.19, under which 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.