Palin and National Disability Insurance Agency
[2023] AATA 94
•17 January 2023
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 Mr Olver’s recommended specifications after agreement had been reached with the Applicant about the additional costs associated with the modifications. The Applicant paid for the house construction.
The Applicant provided the Respondent with details of the proposed modifications in June 2021 and sought approval for the modifications.
The Applicant moved from the Rental Property and has occupied the Beaumaris Property with his wife since November 2021.
The delegate of the Respondent approved a statement of participant supports (30 November 2021) but declined funding for a range of home modifications and other costs associated with the Applicant’s new home. These total $138,023.74 and are as follows:
1)Stamp duty on land - $50,681.08;
2)Conveyancing fees - $4,301.57;
3)Builder’s cost for larger main bedroom, WIR, ensuite, living areas, free flowing hallways and wider garage - $25,450;
4)Wider front and back doorways - $8,461.67;
5)Front and rear flat floor egress - $5,768.52;
6)Concrete path around house - $12,485;
7)Additional internal downlights - $2,375;
8)Four double external flood lights - $770;
9)Automatic sensor light between main bedroom and ensuite - $525;
10)Automatic sensor light in garage - $251;
11)Skylight in hallway area - $1,141.80;
12)Audio visual door-bell $229;
13)Magnified wall mounted mirror -$179;
14)Slide and hide door oven- $4,150;
15)Enclosed rangehood- $510;
16)Reinforced glazed shower with open door access- $2,170;
17)High sided bathtub- $2,080;
18)Crossover (driveway) relocation, including Council permit- $10,956.44; and
19)Removalist from the Rental Property to the Beaumaris Property - $5,153.66.
The decision under review is the internal review decision dated 25 March 2022 (Internal Review Decision), made under s100 of the National Disability Insurance Scheme Act 2013 (the NDIS Act).
The Applicant has subsequently advised the Tribunal that reimbursement for the supports requested above (17) the high sided bathtub and (19) removalist costs are no longer being sought and consequently were not addressed during the hearing, nor form part of this decision.
The Applicant agreed to the Respondent’s request for a second independent OT assessment, which was conducted by Ms Phi Van-Houston (Ms Van-Houston) of Cross Links Rehabilitation Services at the Applicant’s new home, the Beaumaris Property on 18 October 2022 (Ms Van-Houston Report). The Ms Van-Houston Report was provided to the parties and the Tribunal on 31 October 2022. The Ms Van-Houston Report rejected all modifications being sought for reimbursement other than a magnifying mirror. Ms Van-Houston was a witness at the hearing.
Issue
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.
The Applicant has applied to the Tribunal for review of the decision not to fund the home modifications to the Beaumaris Property and other costs associated, which he considers to be reasonable and necessary supports for his impairments.
The Tribunal held a final hearing by video conference in this matter on 15 and 16 November 2022. The Tribunal has considered all the documents filed and taken into evidence in this proceeding and for the following reasons varies the decision of the Respondent not to fund any of the disputed supports, and instead to fund some, but not all, of the supports requested. The reasoning for each support is listed below in order of the requests listed in paragraph 9.
Contentions
Before addressing the home modifications, it is necessary to refer to the Applicant’s claim that Ms Van-Houston, the OT contracted by the Respondent to assess his needs, was not independent of the Respondent. This was raised at length by the Applicant both in written submissions and in cross examination and allowed by Counsel for the Respondent. In the transcript from the first day of the hearing, Ms Van-Houston made the following statement:
So can I just say that, if you had asked me to do the report, you would be getting the same response, as with anyone else. So like I have mentioned before, I get requests from plaintiffs as well as defendant lawyers, as well as having NDIS participants as my clients as well. So I don’t differentiate and I don’t only just do NDIA work. I also do, if you’re talking about profit, I also receive clients who are DVA, who are under the Medicare scheme, across the board. So I am not sure if you can find, unless there are OTs or service providers out there who provide things pro bono, it is very difficult to, I guess, if I can say accuse me of doing this for the purpose of making money. I think, as OTs, we take an oath as well. There is ethical - yes, we have ethical oaths -oath as well.
The Applicant was undoubtedly frustrated by Ms Van-Houston’s rejection of each one of his claims, bar the magnification mirror, which he noted was “the cheapest item”. He contrasted this with the Mr Olver Report, who had recommended the modifications, the time the two took to make their assessments (nine months for Mr Olver and two hours for Ms Van-Houston) to conclude that Ms Van-Houston’s evidence was “not independent”, and that, since the two assessments were “chalk and cheese”, the evidence of Mr Olver should be preferred.
The Respondent contended that Ms Van-Houston had assessed the Applicant in his new home, whereas Mr Olver, because of Covid-related restrictions on face-to-face meetings in place at the time, had not assessed the Applicant in the Rental Property and had relied on the builder’s plans to assess the modifications required. The Respondent argued the evidence of Ms Van-Houston was to be preferred.
There is no doubt the assessments carried out by both OTs were inhibited by the absence of assessment in the Applicant’s Rental Property, but that does not prevent experienced OTs from drawing sensible conclusions about the necessity or otherwise of home-modifications.
Ms Van-Houston’s observations of the Applicant demonstrating “no reduction in his mobility, as a result of his vision impairment, whilst walking through the home”, as well as her careful study of the Applicant’s capabilities, are of additional probative value. Her reference to Liveable Housing Australia Guidelines is, as cross examination by the Applicant revealed, of less significance. The Tribunal considers the evidence relevant to those Guidelines at a later point in this decision.
The Tribunal finds that the OTs’ professional requirements, “the ethical oaths” as Ms Van-Houston described them, are sufficient to ensure their reports are independent. Accordingly, the Tribunal will consider the findings of the two OTs with respect to each support.
Requested Support
(1) Stamp Duty on Land and (2) Conveyancing fees:
Jurisdiction under the NDIS Act
A threshold issue for the Tribunal is whether it has jurisdiction to consider an applicant’s claim. In this case, the Respondent has submitted that the Tribunal has no jurisdiction to consider the Applicant’s claims for the supports requested (1) stamp duty on land and (2) the conveyancing fees for the purchase of the land on which the Applicant subsequently built the Beaumaris Property and which is the subject of this matter. It is unfortunate that this submission was not the subject of a separate hearing but was instead made as a written submission half way through the hearing itself. It might have made it difficult for the Applicant to prepare, if he had a mind to, a differing view of the Respondent’s contention. However, the Tribunal provided additional time for the Applicant to consider the additional material so that it could be addressed at the hearing and it is therefore part of this decision.
The Respondent argued that the reviewable decision of 30 November 2021, a plan of participant supports, was necessarily “prospective”. In the Respondent’s Outline of Submissions dated 16 November 2022 (Respondent’s Outline of Submissions), the Respondent contended that[1]:
“The language of sections 31 to 41 of the Act is unambiguously prospective. Part 2 of Chapter 3 of the Act relating to participants’ plans does not contemplate reimbursing a participant for a cost incurred and paid for prior to entrance into the NDIS.
P 21. For example, section 34 refers to ‘the reasonable and necessary supports that will be funded’ [emphasis added].
P22. the Applicant paid for stamp duty and conveyancing on or about 22 June 2020. He became a participant in the NDIS on 15 July 2020, more than three weeks later.”
[1] Respondent’s Outline of Submissions dated 16 November 2022 (Respondent’s Outline of Submissions) at paragraphs [20] to [22].
The Respondent’s contention is that these costs, being incurred prior to the Applicant’s acceptance to the NDIS, are not within the jurisdiction of the Tribunal to consider. The Applicant did not disagree with the critical dates identified by the Respondent in the chronology of events, nor that this chronology would, if agreed, exclude the stamp duty and conveyancing fees from reimbursement.
The Applicant’s contended that, consistent with the practice of other Commonwealth agencies, the Respondent should consider him as a participant in the scheme “from the date of [his] application, not the date of [his] admission” to the Scheme. The Applicant referenced Centrelink, which had deemed him eligible from the date of his application for a Disability Support Pension (blind).
While the Applicant’s contention, during the hearing, was that his admission to the scheme on account of his progressing glaucoma was “quick” and essentially was never in doubt; as the work of this Tribunal attests, application for admission to the NDIS is regularly contested by the Respondent and can never be considered a foregone conclusion. It is also noted, as s28 of the NDIS Act stipulates,
(1) A person becomes a participant in the National Disability Insurance Scheme on the day the CEO decides that the person meets the access criteria.
(2) The CEO must give written notice of the decision to the participant, stating the date on which the person became a participant.
The Respondent has referenced the role of the Tribunal as standing in the shoes of the decision-maker[2] to make the further point that the Tribunal’s powers under the Administrative Appeals Tribunal Act 1975 (Cth) are limited to, as the Full Federal Court has noted:
powers ‘for the purpose’ of reviewing the reviewable decision.
[2] Respondent’s Outline of Submissions dated 16 November 2022 at paragraph [13]
In this case, the Respondent identifies the Internal Review Decision before the Tribunal as the plan in force for the period 25 November 2021 to 25 November 2022. As the Respondent has argued, participant plans are to be prospective and “do not contemplate reimbursing a participant for a cost incurred and paid for prior to entrance into the NDIS”. For completion of the argument, the Respondent referenced the decision in Rogers and the National Disability Insurance Agency [2022] AATA 2809, where Senior Member K Buxton concluded at [18] only those supports that could have been included within the original decision are within the jurisdiction of the Tribunal on review. In other words, even if the Tribunal wanted to consider costs incurred prior to the Applicant’s entry to the Scheme, it was precluded from doing so by the parameters of the original plan decision, which are entirely prospective and could not have included retrospective costs. [bold added for emphasis].
Noting, as the Respondent observed, that there has been no Federal Court decision regarding the Tribunal’s jurisdiction with respect to costs incurred retrospectively it nonetheless seems inherent to the integrity of the Scheme that support plans be prospective and, further, that costs incurred prior to entry to the Scheme would be both a challenge for the financial viability of the scheme and to the relevance of those many sections of the NDIS Act devoted to considerations the Respondent’s CEO must make when deciding upon entry to the NDIS. Significantly, in this case the Applicant chose only to parry with the difference between an application to join the scheme and actual admission to the scheme; he did not deny that supports should be prospective.
On balance, the Tribunal finds that the Respondent’s contention is correct; that is, that the conveyancing and stamp duty costs incurred are inconsistent with the prospective outlook of the NDIS and, not then being able to be part of the original plan decision, are therefore not reviewable by the Tribunal. In the Respondent’s Statement of Facts, Issues and Contentions dated 26 August 2022 (the Respondent’s SOFIC) other contentions are made about these particular costs and, for completion, these are considered later in this decision.
The objects of the NDIS Act, as set out in Part 2, section 3, include to:
(a) in conjunction with other laws, give effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12); and
(b)provide for the National Disability Insurance Scheme in Australia; and
(c)support the independence and social and economic participation of people with disability; and
(d)provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme; and
(e)enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and
(f)facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability; and
(g)promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community; and
(ga) protect and prevent people with disability from experiencing harm arising from poor quality or unsafe supports or services provided under the National Disability Insurance Scheme; and
(h)raise community awareness of the issues that affect the social and economic participation of people with disability, and facilitate greater community inclusion of people with disability...
Subsection3(3) of the NDIS Act relevantly provides that, in giving effect to the objects of the NDIS Act, regard is to be had to the need to ensure the financial sustainability of the NDIS.
Part 2- Section 4 of the NDIS Act sets out the general principles guiding actions under the legislation, including that:
(1) People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development.
(2) People with disability should be supported to participate in and contribute to social and economic life.
(3) People with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime.
As part of the participant’s NDIS plan, an applicant may access funding only for supports that are reasonable and necessary under s 33(2)(b) of the NDIS Act.
The NDIS Act does not define the phrase ‘reasonable and necessary’, but guidance can be obtained from McGarrigle v National Disability Insurance Agency (McGarrigle),[3] where Mortimer J considered the phrase in some detail, referencing s 34 of the NDIS Act:
[91]Whether a support is “reasonable” requires a different assessment to whether a support is “necessary”. It is not necessary in the context of this proceeding to be definitive about the nature and extent of the meaning of the phrase, or its components. It is enough to observe that using the concept of necessity would appear to tie one aspect of the CEO’s assessment to an evaluation of the kinds of factors set out in s 34(1)(a) and (b) and (d). The word “reasonable” would appear to be directed at factors such as those set out in s 34(1)(c) and (f). That is not to say the meaning of each word is exhausted by the factors set out in s 34(1): rather, it is to illustrate the different work that each concept does as an adjective in the phrase “reasonable and necessary supports”.
[3] [2017] FCA 308 (28 March 2017).
For completion, s34 (1) of the NDIS Act specifies the conditions which must be satisfied for a support to be considered reasonable and necessary. These are that:
(a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
(b)the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
(c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f)the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(i) as part of a universal service obligation; or
(ii) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
In addition to the conditions specified in s34 of the NDIS Act; the decision to fund a requested support must also be consistent with the objectives of the NDIS Act, the general principles outline in s4 of the NDIS Act and the participant’s statement of goals and aspirations. It must also satisfy the requirements of the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Rules).
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.
The Applicant has not disputed the relevance of the Rules, or section 34 of the NDIS Act, and the Tribunal proposes to apply them to the matters in contention in this case.
Operational Guidelines have also been provided under the Scheme to assist in applying the NDIS Act to individual circumstances. This includes the funding of extensive home modifications such as those sought by this Applicant. Relevantly the Guideline advises:
Generally, the NDIA will fund reasonable and necessary home modifications:
·to the participant's primary residence where, due to the impact of the participant's disability, the participant or their carers are unable to reasonably access and use frequently used rooms and spaces using standard fixtures and fittings;
·when the participant’s primary residence, in its current condition, has a significant and adverse impact on the sustainability of current living and care arrangements
·where a suitably qualified Occupational Therapist has performed an assessment and recommended home modifications considering all possible alternatives, including the use of equipment.
Additionally, the ‘new building modifications’ section (T1D) of the NDIS Home Modifications: Guidance for Builders and Designers includes the following:
The NDIS will fund only reasonable and necessary modifications to a new dwelling based on the participant’s needs, as assessed by an Occupational Therapist suitable qualified in new building modifications.
Funding for modifications will be based on the costs associated with any alterations to the plan that are assessed as being reasonable and necessary and relate to the participants disability.
…
The NDIS will fund the cost differential for agreed alterations in a planned home. That is, the difference in cost for the supply of a standard item and the modified item required to meet the needs of the participant.
…
The following items generally do not meet all reasonable and necessary criteria for NDIS funded support. The home owner or participant may choose to have these items and separately fund them with the builder; including but not limited to:
·Site works not related to a participant’s disability or required as a result of a poorly sourced building site.
·Upgraded items/features not related to a participant’s disability.
The Tribunal is tasked with applying the rules and relevant operational guidelines to determine whether the building modifications and associated costs are reasonable and necessary and agrees that the Rules and Operational Guidelines identified as relevant by the Respondent should form the basis of that determination. The Applicant has not disputed their relevance.
It is not disputed that the Applicant is impaired because of his advancing glaucoma.
Although the Tribunal has already decided that stamp duty and conveyancing fees are not within its jurisdiction, I have also made findings about whether they meet the criteria required to be considered reasonable and necessary supports.
The Tribunal has also considered noted the general observation in the Ms Van-Houston Report[4] that “I would anticipate that the Applicant would attribute his independence with mobility within and around his home due to the additional space, the straight and wider hallways, the ramped and level entry to the back sliding door, the additional lighting and natural light by having the double garage on the west side of the house instead of the east side”. She also notes the Applicant’s description of “knocking into things” and “walked [ing] into objects” in his former Rental Property, consistent with the description provided to Mr Olver. She was not asked by either party why there should have been an increase in his independent mobility if it were not for the improvements in the house’s design and did not suggest that his description of his impeded mobility in his Rental Property was untrue or exaggerated.
[4] Occupational Therapist Report by Ms Phi Van-Houston of Cross Links Rehabilitation Services dated 18 October 2022 at page [12]
The Respondent has disputed that any of the home modifications and associated costs being sought by the Applicant are reasonable and necessary (with the exception of a mirror) because they do not meet the requirements of Rule 3.2 (b) value for money and instead meet the requirements of Rule 5.2 (b) they are not related to the Applicant’s disability and instead (d) are regarded as everyday living costs. The Tribunal has applied each of those Rules in examining the evidence of each of the contested supports in turn. No other Rules are in dispute.
(2) Stamp Duty and Conveyancing Costs:
The Respondent’s SOFIC contends that these transfer costs are not related to the Applicant’s disability, but rather, are ordinary costs when moving from a rental property into a new build. For completion, the Tribunal notes they would therefore be excluded under Rule 5.1 (d) day to day living costs.
Although the Applicant conceded that the decision to build a new home had been partly driven by his wife’s inheritance and the desire to own their own home, consistent with other Australians who purchase a home in the ordinary way, the Applicant contended that the move was primarily for the purpose of living in a house able to better accommodate his disabilities. He had described the difficulties he faced in moving about the rental property, which was accepted by both OTs. The Applicant made the following statement during the hearing:
We are very fortunate to have paid it off outright … mum died and father had died, so there was some money left over from the estate there… but we have used our super, so that’s been depleted...
The Applicant cites Operational Guidelines for home modifications as including
assistance with the cost of moving to accessible premises as an alternative to home modifications where this is cost effective to provide access. Potential costs that may be covered include: stamp duty and legal costs.
The Tribunal notes the Applicant omitted a qualifying sentence in that part of the operational Guideline cited (filed as T10) viz.: Generally, it would be expected that any new premises selected provide appropriate access and that any further modifications would be very basic and low cost.
In addition to claiming the transaction costs associated with purchasing the Beaumaris Property, the Applicant is also claiming the significant cost of modifying the house plan provided by his chosen building company. The Operational Guidelines, even as incompletely cited by the Applicant, clearly do not contemplate paying for both these costs. It is noted that the Guidelines draw out this point further: “the new home is to be appropriate with minimal modifications or none at all”.
The Tribunal finds that stamp duty and associated legal costs claimed by the Applicant are not consistent with the Operational Guidelines and are therefore, irrespective of jurisdiction, not reasonable and necessary supports.
(3) Builder’s cost for larger main bedroom, WIR, ensuite, living areas, free flowing hallways and wider garage:
The Respondent contends that these are not necessary for a vision-impaired person and relies significantly on the advice of Ms Van-Houston, who referred to the Liveable Australia Guidelines, which have been, as she advised under cross examination, “designed with the ageing person in mind….” And later, under re-examination “to encourage people to live independently over their lifetime”. These Guidelines, she observed, already recommend bedrooms, bathrooms, living areas and hallways should be larger and free-flowing. When asked if it were true that “a lot of Australians choose to build a larger bedroom, not related to his [an] impairment?”, she relied “That’s correct”. Ms Van-Houston concluded in the Ms Van-Houston Report “I am of the opinion that these items are not specific to [the Applicant]’s visual impairment”[5]. Later, she advised that the “Applicant confirmed that he was not implementing the strategy of moving his head more to essentially do head checks to compensate for his loss of field vision”.
[5] Occupational Therapist Report by Ms Phi Van-Houston of Cross Links Rehabilitation Services dated 18 October 2022 at page [15]
Under cross examination, when the Applicant was asked why he did not use the strategy of head checks, he replied “I try and scan but it’s not easy. I can’t be constantly thinking about it…Constantly moving your head; it’s not practical”. In Mr Olver’s Report, he reported the Applicant’s “memory was impacted upon due to the “constant thinking and tiredness “he experiences as a result of his physical disabilities. “[the Applicant] is required to recall the positioning of objects and the layout of the environment around him [the Applicant] stated that his “brain is constantly working and adjusting”.
With respect to the wider hallway, Ms Van-Houston advised “Wider hallways are not as important as a hallway free of clutter when looking at accessibility for a person with visual impairment”. The importance of removing clutter from the floors was also observed in Mr Olver’s Report.
The Applicant contended the larger spaces and straightened hallway enabled him to move more easily and safely around his house, as Ms Van-Houston had observed. When asked about the pot plants observed in photographs of the Rental Property passageway, he explained “My wife likes pot plants…they’re for aesthetic purposes, it comes down to balance. My wife likes plants” and when asked if aesthetics outweighed safety concerns, the Applicant agreed “yes, I wouldn’t have put them there”.
In his cross-examination of Ms Van-Houston, the Applicant asked why she had not referred to the home modifications advised by Vision Australia and Blind Citizens Australia, who she had agreed were “the experts”. He suggested to her that she was relying on Liveability Australia guidelines, which were not designed specifically for the vision impaired, but for the “ageing person”. Ms Van-Houston did not disagree with this.
The Tribunal notes, with respect to wider hallways and bedrooms, the Blind Citizens Australia webpage provides the following guidance for people seeking to modify the home in its resource, Wet AMD: 20 Home Modifications for People with Vision Loss ((AMD: Age related Macular Degeneration):
Common tripping hazards include area rugs, electrical cords, footstools, and any items that may block even a small part of your footpath. These should be removed to ensure walking surfaces and pathways promote safe movement and prevent falls.
The advice of Blind Citizens Australia is consistent with that of the two OTs. The 20 Home Modifications for People with Vision Loss fact sheet does not include the provision of wider hallways and rooms. Although it is possible other advice specifically for purpose-built homes for the vision impaired might be available, this was not provided to the Tribunal with respect to room size.
The Applicant was also challenged on the need for a two-car garage, when they only had one car. The Applicant explained in cross examination that, in addition to being more easily able to navigate a larger area, it was also for “additional storage”.
The Tribunal acknowledges the Applicant’s need to balance his wife’s aesthetic requirements against his safety requirements (as a vision-impaired person) is not easy to meet. But it is not the role of the NDIS to assist in reconciling marital differences by funding, in this instance, larger rooms, a wider hallway or provide for additional storage with a double garage. On balance, the Tribunal finds there is insufficient evidence that enlarged areas of the house were required to address his vision impairment when there were value for money alternatives available such as reducing tripping hazards, as observed by both Mr Olver and Ms Van-Houston. The requirements of Rule 3.2 are therefore not met.
The Respondent also contended that the choice of four bedroomed house was “to accommodate the grandchildren”, based on the Ms Van-Houston Report, in which she also concluded that the new build “could have been left as a 29 square meterage of the home, instead of it being a 32 square meter home. The Applicant has chosen to build a large home to accommodate other family members and guests when they visit.[6]”
[6] Occupational Therapist Report by Ms Phi Van-Houston of Cross Links Rehabilitation Services dated 18 October 2022 at page [16]
In the Ms Van-Houston Report, which the Applicant did not challenge, she notes that the “Applicant reported it needs to be large enough to also accommodate family members when they visit, especially the four grandchildren when they sleep over.[7]” Ms Van-Houston suggested that the home could have been modified to provide the enlarged spaces required by removing a bedroom.
[7] Occupational Therapist Report by Ms Phi Van-Houston of Cross Links Rehabilitation Services dated 18 October 2022 at page [31]
The Applicant, under cross examination, contended that four-bedroom homes were now more usual than three bedroom and that modifying the internal layout by removing a bedroom was not possible. The purpose of enlarging the rooms was directly related to his disability.
The Tribunal observes that it is not the total cost of the house being claimed as a support by the Applicant, but only the cost of the modifications.
The Respondent, relying on the Ms Van-Houston Report, contends that the modifications being sought are commonly sought by other home buyers who purchase standard project homes. In re-examination, when asked if a lot of Australians choose to build a larger bedroom, not related to impairment, Ms Van-Houston replied “that’s correct”. She states in the Ms Van-Houston Report [8]:
“based on the principles of universal design and the Liveable Housing Design Guidelines, as well as literature on I am of the opinion that these items are not specific to the Applicant’s visual impairment”.
[8] Occupational Therapist Report by Ms Phi Van-Houston of Cross Links Rehabilitation Services dated 18 October 2022 at page [15]
The Applicant contended in his evidence that while that might be true for other home buyers, in his case the modifications were sought to accommodate his disability of vision impairment. The Applicant gave extensive evidence of his need for improved access through the house, the difficulties he had navigating corners and protruding walls in his previous home and, during Ms Van-Houston’s site visit, was able to demonstrate the ease with which he could move through the building.
The Tribunal finds, based on the evidence, that the requirement for larger rooms, including the Applicant’s ensuite bathroom, bedroom and hallway, was not demonstrated by the Respondent to have been based on the need to accommodate grandchildren and friends.
Further, the Tribunal notes that although there was no disagreement that the need for a four bedroomed house would satisfy additional accommodation needs, the number of bedrooms in the Whittlesea 29 Mark 2 plan was not modified by the Applicant.
The Tribunal finds that the modifications to room size were, in the case of this Applicant, sought on the basis of his visual impairment and were specific to the Applicant’s visual impairment, rather than the supposed requirements of other Australians. However, an Applicant’s intention in seeking funding for a support is not sufficient when determining whether a support is reasonable and necessary; it must be demonstrably effective. Accordingly, the Tribunal is also required to consider the expert evidence of both OTs, which is that removing trip hazards and obstacles is the best way of enabling a vision impaired person to mobilise around the home. The advice of Blind Citizens Australia is also to remove hazards and obstacles. While the Applicant genuinely holds the belief that the modifications to room size will assist his mobility, this belief is not supported by the expert evidence, including sources of advice referenced by the Applicant. The Applicant was unable to demonstrate that his ease of movement around his house, as witnessed by Ms Houston, was the result of enlarged spaces or instead by other modifications which are considered later in this this decision.
The criteria in Rule 5.1 (d) (a), that a support will not be provided or funded under the NDIS if it is “not attributable to a participant’s disability support needs”, is therefore met.
The Tribunal finds that the criteria in Rule 5.1 (b), that it is not related to the participant’s disability, is therefore also met.
Overall, with respect to the application for reimbursement for the cost of the enlarged rooms, the Tribunal is satisfied that Rules 5.1 (b) and (d) have been met. That is, that the support is not related to the participant’s disability and relates to day-to day living costs. Additionally, removing obstacles was identified as an alternative means of enabling easier movement through the house and accordingly, enlarged rooms do not represent value for money and therefore do not satisfy Rule 3.1, Value for money.
The Tribunal finds that the decision by the Respondent in respect of the supports requested (3) Builder’s cost for larger main bedroom, WIR, ensuite, living areas, free flowing hallways and wider garage for the above reasons is supported by the evidence available; they are not reasonable and necessary supports.
(4) Wider front and back doorways Support; (5) Front and rear flat floor egress; and (6) Concrete path around house:
The Respondent has relied on the evidence of Ms Van-Houston to contend that, since the Applicant demonstrated no difficulties navigating the loose gravel path across the backyard, had no medical condition of the lower limbs that would affect his ability to mobilise and negotiate steps and did not require widened doorways so that a wheelchair could enter or leave the house, none of these supports are reasonable and necessary.
“Overall”, the Ms Van-Houston Report concludes, “there is no clinical justification to support the needs for wider doorways or a level entry at entrances…” “the Applicant demonstrated he was able to negotiate loose gravel safely and easily ….so the choice of an exposed aggregate concrete path is not due to his disability”.
In cross examination, the Applicant conceded that he uses the garage to egress the house rather than the front door. He agreed that he could navigate the gravel path without problems but said it was “not ideal”. He disagreed that it was sufficient.
The Tribunal finds there is insufficient evidence provided by the Applicant that the wider doorways, flat floor egress and a concrete path are necessary to support his disability needs, and that therefore the criteria of Rule 5.1 (b) “it is not related to the participant’s disability” is met, and accordingly, Rule 5.1 (d), that they relate to “day to day living costs” is also met. Rule 3.1 Value for money does therefore not arise.
The Tribunal finds that the decision by the Respondent in respect of the supports requested (4) Wider front and back doorways; (5) Front and rear flat floor egress; and (6) Concrete path around the house for the above reasons is supported by the evidence available; they are not reasonable and necessary supports.
(7) Additional internal downlights; and (8) Four double external flood lights:
The Respondent contends, based on the evidence of Ms Van-Houston, that additional downlights and external flood lights are not required because “it is standard industry practice for builders to include the bare minimum to keep costs down”. Ms Van-Houston was not asked for her opinion on building industry practices but on whether the Applicant required additional lighting to assist his mobility and independence within his home. The Tribunal finds Ms Van-Houston’s evidence to be of little relevance in this case.
The Respondent has also contended, based on the evidence of Ms Van-Houston, that the Applicant’s lighting needs would be met by the provision of “more lumens” rather than more lights. The Respondent referred to the Liveability Australia guidelines for this advice.
The Applicant contended that the relevant guidelines were those specifically developed for sight-impaired people, which would include Vision Australia guidelines and the Thomas Pocklington Trust Guidelines for Lighting in and around the Home guidelines (Thomas Pocklington Trust Guidelines), which appear to be a primary source of advice.
The Thomas Pocklington Trust guidelines, as the Applicant put to Ms Van-Houston in cross examination, emphasises the importance of better light distribution, not more intense lighting in specific locations in the house. She agreed she had not applied the guidelines for sight-impaired people, but those of LivAbility Australia, which were for the “ageing person”.
The Applicant, in his closing submissions, referenced a case study in the Thomas Pocklington Trust guidelines which advised the use of additional ceiling lights for better light distribution to assist the safe movement of the visually impaired through the house. He described the ‘dark areas” of his previous Rental Property and the difficulty for him in moving from dark to well-lit areas of the house.
In the Pocklington guidelines, the use of automated lighting (sensor lighting) is also supported for visually impaired people to obviate their need to grope for a light switch. While he conceded that other Australians might want more lights for other reasons, “I simply followed what was reasonable for visually impaired people”.
The Tribunal, having considers the evidence for lighting provided by both Respondent and Applicant, finds the Applicant’s request for additional lighting, both inside and outside the home, to be a reasonable and necessary support for the Applicant’s sight impairment. They are being sought on the basis of the Applicant’s disability and are not an everyday cost.
Since the cheaper alternative of “additional lumens” proposed by the Respondent is not consistent with the Pocklington Trust guidelines regarding the need for more and even lighting within the home, these supports satisfy the requirements of s34.1 (c) of the NDIS Act and Rule 2.3 (c) value for money.
The Tribunal varies the decision of the Respondent on the requested supports (7) and (8) to approve the supports requested as reasonable and necessary and to reimburse the Applicant for the costs of their provision.
(9) Automatic sensor light between main bedroom and ensuite; and (10) Automatic sensor light in garage:
Based on the evidence adduced in considering supports (7) and (8), the Tribunal finds that the provision of automated sensor lights in the bedroom, ensuite and garage are reasonable and necessary supports for the Applicant’s impairment.
However, the Tribunal agrees with the Respondent that cheap automated plug-in sensor lights from hardware stores represent greater value for money. This was not contested by the Applicant. Evidence was not provided to the Tribunal by the Respondent about whether there were existing power points located at suitable points in the bedroom, ensuite and garage for the cheaper plug-ins. Accordingly, when considering the additional cost of installing power points at locations where the plug-in sensor lights would provide adequate benefit to the Applicant when moving about at night, the Tribunal accepts that the present installations are cost effective.
The Tribunal varies the decision of the Respondent on the requested supports (9) automatic sensor light between main bedroom and ensuite and (10) automatic sensor light in garage to approve the supports requested as reasonable and necessary and to reimburse the Applicant for the costs of their provision.
(11) Provision of skylight in hallway:
The skylight request has not yet been installed. The Applicant, under cross examination, told the Tribunal “we were advised to put it in later. Obviously, I’m coping without it at the moment. It would be of value but it’s a question of that value. It’s future proofing”. This was an honest reflection by the Applicant.
The Respondent, based on the advice of Ms Van-Houston, contends that the provision of a skylight is not value for money since artificial lighting would still be required at night-time and “light globes with greater wattage and lumens can be used to provide additional light in the hallway if required”. Ms Van Houston also identified the risk of leakage and cleaning as problems associated with skylights, although this was not strictly relevant.
Ms Van Houston reported “the Applicant did not demonstrate any difficulties with negotiating around the various areas of the hallway on the day of the assessment”. The Applicant had previously agreed he was “coping” and the Tribunal notes it is open to the Applicant to seek this support at some later stage if his sight deteriorates further and he believes it is required.
The Tribunal finds that the decision of the Respondent on the requested support (11) skylight in hallway area for the above reasons is supported by the evidence available; it is not a reasonable and necessary support.
(12) Audio visual door-bell; and (13) Magnified wall mounted mirror:
The Respondent contended that since neither of these had been installed, the Applicant did not need them. The audio-visual door bell has been purchased. When asked why it had not been installed after a year of occupancy, the Applicant replied, “I can’t get everything done at once, with Covid we were struggling to get anything done. I can’t get anyone to build a front fence or install the doorbell”. He said answering the front door without an audio-visual display had “made it difficult”.
The evidence of Ms Van Houston on the audio-visual doorbell is confusing; She describes it as not being “disability specific, but a feature of many new homes”. Again, this is not what she is being asked to consider. She then observes in the case of the Applicant that visitors “would know he is home and will come to the door. If it is a delivery, the courier usually rings the door bell and leaves it…. before a person even had the chance to go to the intercom and answer”. It is not clear how these observations relate to his sight-impairment.
The Applicant contends that his sight impairment makes it more difficult for him to see who is at the door and the audio-visual aid would help. The Pocklington guidelines do not advise on audio-visual door bells but considering the evidence, the Tribunal finds that such a device would assist the Applicant’s independence and provide more confidence when opening the door to strangers, particularly at night.
The installation of a magnifying mirror was hotly contested during the hearing. The magnifying mirror was required to enable the Applicant to shave and do his hair. The Respondent relied on the advice of Ms Van- Houston, who reported the Applicant had said that he did not require it at this stage. “I believe what I said was I hadn’t purchased it yet”. When pressed in cross examination, the Applicant responded that he was “struggling financially, I don’t see why I should buy it at my cost”.
Ms Van-Houston, under examination, agreed that the magnifying mirror was necessary and that she might have misunderstood the Applicant’s answer.
The Tribunal finds the evidence supports the installation of a magnifying mirror and an audio-visual doorbell.
The Tribunal varies the decision of the Respondent, with respect to the requested supports (12) audio visual doorbell and (13) magnified wall mounted mirror to approved the requested supports as reasonable and necessary and to reimburse the applicant for the purchase of the audio-visual doorbell.
(14) Slide and hide door oven; and (15) Enclosed rangehood:
The Respondent, based on the Ms Van-Houston Report, contended that the Applicant “does not undertake food preparation and cooking, and had no intention of doing so in the new home…however his justification for the [proposed supports] … is so that he does not walk into them whilst his wife is cooking if he has to go into the kitchen”. Ms Van-Houston rejected this reasoning and suggested that the range hood could be mounted above his head height and the Applicant’s wife to “warn him if she is taking something out of the oven and that the door is temporarily open until she sets the food down”.
The Applicant described the accidents he had experienced the Rental Property by colliding with the range hood and oven door. He described making tea and going to the kitchen to heat something up or prepare a snack and not being able to see the range-hood, which is at his head height, or the open oven door.
In cross examination the Applicant was asked why a standard (not enclosed) range hood could not have been installed at a greater height to avoid collision. He explained that “the purpose of the range hood in a new build was to install it in a flat wall, not a piece of Perspex sticking out and… if it is raised, it is less effective [at extracting the fumes].
The retractable oven door requested by the Applicant reflects the cooking patterns of his wife and the requirements of cooking more generally. When asked by the Respondent if she could “just” close the door, the Applicant replied “It’s not practical for her to think she needs to close the door… The dishwasher is still a problem but…you can’t design the perfect house which meets all requirements”.
It is clear, based on the Applicant’s lived experience, that there have been accidents with the oven door in the past because of the Applicant’s limited vision. Having the option of sliding the door under the oven cavity would reduce the risk of accidents for this Applicant. This would apply whoever was cooking in the house and is not therefore, a question of aesthetics or the level of personal responsibility exercised by his wife. It would directly improve the Applicant’s safety and independence were he to venture into the kitchen.
The Tribunal has considered the evidence and finds that the provision of a retractable oven door and enclosed range hood are both reasonable and necessary supports for the Applicant’s impairment.
The Tribunal varies the decision with respect to requested supports (14) slide and hide door oven and (15) enclosed rangehood to approve these as reasonable and necessary and to reimburse the Applicant for their purchase.
(16) Reinforced Shower Screen:
The Respondent contended, through the evidence of Ms Van Houston, that the reinforced shower screen was not necessary in support of the Applicant’s visual impairment. In her report, Ms Van-Houston said she was “uncertain as to the reasoning by the Applicant’s occupational therapist …given Australian Standards”. The Applicant did not provide evidence that the shower screen had been appropriately marked, as proposed by Ms Van Houston, to improve his ability to see it. Ms Van Houston also observed that the shower alcove could have benefited from “a rod and weighted curtain if there are concerns around glass breakage”.
The Tribunal finds that the Applicant has not provided sufficient evidence that the strengthened shower screen is a reasonable and necessary support for his visual impairment.
The Tribunal finds that the decision of the Respondent with respect to the requested support (16) reinforced shower screen for the above reasons is supported by the evidence available; it is not a reasonable and necessary support.
Requested Support (18) Crossover (driveway) relocation, including Council permit:
The Respondent contended that the relocation of the driveway, which followed from the altered orientation of the house on the block to enhance access to natural light, was not a reasonable and necessary support of the Applicant’s impairments.
The Respondent, based on the evidence of Ms Van-Houston, barely addressed the importance of increased natural light to the Applicant. Ms Van-Houston did not reflect on the importance or otherwise of increased natural light for the visually impaired although earlier in her report, with respect to the skylight, she had observed that additional light could best be provided with “additional lumens”.
When asked by the Respondent whether the relocation of the house was to increase the value of the Beaumaris Property, the Applicant replied he “would want east-west orientation with living areas exposed to the northern light”.
The Applicant did not contend that greater natural light would reduce the need for artificial lighting (which he had sought to increase). The Applicant had previously emphasised the importance of even lighting throughout the house but did not make that point with respect to the reorientation of the house. However, he asserted the reorientation was necessary and contended there was no other way of providing a driveway to the house as now configured on the block, other than by moving the cross over.
The Tribunal finds on the evidence available that the relocation of the cross over to the Applicant’s property, necessitated by the Applicant’s reorientation of the house to achieve more natural lighting in the living area, is not a reasonable and necessary support for the Applicant’s impairment, because the case has not been made that the reorientation assisted the Applicant’s safety in the house.
The Tribunal finds that the Respondent’s decision with respect to Support (18) Crossover (driveway) relocation, including Council permit, for the above reasons is supported by the evidence available; it is not a reasonable and necessary support.
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:
No.
Support Requested
Decision
1.
Stamp duty on land - $50,681.08
No jurisdiction
2.
Conveyancing fees - $4,301.57
No jurisdiction
3.
Builder’s cost for larger main bedroom, WIR, ensuite, living areas, free flowing hallways and wider garage - $25,450
unchanged
4.
Wider front and back doorways - $8,461.67
unchanged
5.
Front and rear flat floor egress - $5,768.52
unchanged
6.
Concrete path around house - $12,485
unchanged
7.
Additional internal downlights - $2,375
varied
8.
Four double external flood lights - $770
Varied
9.
Automatic sensor light between main bedroom and ensuite - $525
Varied
10.
Automatic sensor light in garage - $251
Varied
11.
Skylight in hallway area - $1,141.80
unchanged
12.
Audio visual door-bell $229
Varied
13.
Magnified wall mounted mirror -$179
Varied
14.
Slide and hide door oven- $4,150
Varied
15.
Enclosed rangehood- $510
Varied
16.
Reinforced glazed shower with open door access- $2,170
unchanged
17.
High sided bathtub- $2,080
Not applicable
18.
Crossover (driveway) relocation, including Council permit- $10,956.44
unchanged
19.
Removalist from the Rental Property to the Beaumaris Property - $5,153.66
Not applicable
I certify that the preceding 137 (one hundred and thirty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Goward
................................. [SGD].......................................
Associate
Dated: 17 January 2022
Date(s) of hearing: 15 and 16 November 2022 Applicant: Mr Palin Counsel for the Respondent: Mr Ternes
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