Paterno and National Disability Insurance Agency
[2022] AATA 3908
•21 November 2022
Paterno and National Disability Insurance Agency [2022] AATA 3908 (21 November 2022)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2021/4711
Re:Madeleine Paterno
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
Decision
Tribunal:Member I Thompson
Date:21 November 2022
Place:Adelaide
The decision under review is set aside and in substitution a decision made that Ms Paterno is entitled to SDA funding as follows:
(a) Building type – apartment, sole occupancy, two bedrooms
(b)Design category – high physical support
(c)Location – NSW – Illawarra
(d)Funding up to $126,162.57 per year.
............................[sgnd]......................................
Member I Thompson
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – specialist disability accommodation requirements – reasonable and necessary supports – whether applicant should receive funding for a two bedroom one resident apartment – high physical support needs – decision set aside and substituted
Legislation
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013
National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020
Cases
McGarrigle v National Disability Insurance Agency [2017] FCA 306
National Disability Insurance Agency v WRMF [2020] FCAFC 79
REASONS FOR DECISION
Member I Thompson
21 November 2022
INTRODUCTION
The applicant, Madeleine Paterno, is a participant in the National Disability Insurance Scheme (NDIS). She is 25 years old. She has cerebral palsy spastic quadriplegia and she uses a powered wheelchair for mobility.
The respondent, the National Disability Insurance Agency (the Agency), administers the NDIS. Ms Paterno’s relevant NDIS plan commenced on 16 March 2021. She requested an internal review of the plan in relation to her accommodation. The Agency notified her by letter[1] on 28 June 2021 of the result of the internal review explaining the reasons for rejecting her request for individual, specialist disability accommodation (SDA) residence.
[1] T-documents, T-2, p 12
In her written application to the Tribunal Ms Paterno sought approval for a sole occupancy SDA dwelling (high physical support). She indicated that she was presently residing in a shared, three person SDA residence funded in her NDIS plan.
The hearing was held by video on 28 and 29 June 2022. Both parties were represented by counsel. Ms Paterno gave evidence and called two witnesses: an Occupational Therapist, Ms Alla, and a psychologist, Ms Gibson. The Tribunal received a considerable amount of documentary evidence, which included allied health reports and other material about Ms Paterno’s participation in the NDIS and her request for accommodation.
ISSUES
By the time of the hearing, Ms Paterno indicated that she is requesting a two-bedroom SDA.[2]
[2] Applicant’s Statement of Facts, Issues and Contentions, 17 June 2022
The Agency acknowledged[3] that the following supports are reasonable and necessary for Ms Paterno’s accommodation:
SDA building type: apartment, 1 bedroom, 1 resident Design category: high physical support SDA location: NSW – Wollongong (Illawarra) Funds for 4 hours per day of daily core support.
[3] Respondent’s Statement of Facts, Issues and Contentions, 24 June 2022
The issue for the Tribunal to determine is whether a sole residency, two-bedroom dwelling, or a sole residency, single bedroom dwelling, is reasonable and necessary.
The design category, namely high physical support, is not in dispute. The SDA location, namely Wollongong (Illawarra), is not in dispute.
CONTENTIONS
The principal justifications for Ms Paterno’s request for a two-bedroom residence comprised three components. Firstly, it would assist her to study and work effectively; secondly, it would enable her to develop and maintain social and familial bonds; and thirdly, she requires an environment with sufficient space to store her personal belongings and equipment. In this environment, it was suggested, her desire to become independent and reduce reliance on others would be enhanced.
It was contended for Ms Paterno that a two-bedroom SDA is a reasonable and necessary support that meets the requirements of section 34 of the National Disability Insurance Scheme Act 2013 (NDIS Act) and the National Disability Insurance Scheme (Specialist Disability Accommodation) Rules (SDA Rules).
Incidentally, although of practical importance to Ms Paterno, it was contended that there are only two SDA buildings in the Illawarra region which would be satisfactory. One of them is unavailable and the other one comprises only two-bedroom apartments. There are no known one-bedroom apartments in the region.
The Agency submitted that the question of availability of an apartment in the SDA location is not relevant to the question of whether it is reasonable or necessary.[4] It was contended that the requested building type, of two-bedroom, one-resident, does not meet the criteria in section 34(1)(c) of the NDIS Act in relation to value for money. It was contended that the requested two-bedroom, one-resident category does not meet the criteria in section 34(1)(d) of the NDIS Act requiring a support to be, or likely to be, effective and beneficial having regard to current good practice.
[4] as above at [37]
In opening, counsel for the Agency submitted that the substantive question is about funding for accommodation that is reasonable and necessary, so that with SDA funding in place for a participant, such as Ms Paterno, she can exercise autonomy and choice by securing the support in the way that she wishes. That does not necessarily mean that accommodation is readily available or that availability is a factor in the provision of the funding. However, once the design category, building type and location are confirmed by the Agency, the participant is enabled to seek accommodation within those confirmed parameters, which, for Ms Paterno, should be SDA building type with one bedroom which provides adequate storage capacity and could include a sofa bed for visitors, whether they be support workers, friends, or family.
LEGISLATION
Section 3 of the NDIS Act sets out the objects of the NDIS Act. In giving effect to those objects, or performing functions and exercising powers under the legislation, regard must be had to the need to ensure the financial sustainability of the NDIS: ss 3(3)(b) and 4(17). General principles guiding actions under the NDIS Act are set out in s 4.
Not every support that a participant requests will be provided or funded through the NDIS. Before specifying in a statement of participant supports the reasonable and necessary supports that will be funded, the CEO of the Agency must be satisfied of all of the criteria in s 34(1) of the NDIS Act in relation to each support. If one of the requirements in ss 34(1)(a)–(f) is not satisfied, then the item is not a reasonable and necessary support. S34(1) must be read in conformity with the purposes and objects of the Act.
In McGarrigle v National Disability Insurance Agency[5], the term “support” is described by the Federal Court, per Mortimer J, as “a practical description of the means by which a person with disability is assisted”. [6] In McGarrigle, Mortimer J stated with respect to the question of whether a support is reasonable and necessary:
Whether a support is ‘reasonable’ requires a different assessment to whether a support is ‘necessary. Again, 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.[7]
[5] [2017] FCA 306
[6] As above at [88]
[7] As above at [91]
The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Support Rules) deal with the assessment and determination of “reasonable and necessary supports” that will be funded under the NDIS. The NDIS (Specialist Disability Accommodation) Rules 2020 (SDA Rules) set out criteria for eligibility for SDA, together with provisions for the design, type and location of that accommodation. Both the Support Rules and the SDA Rules form part of the legislation. The Specialist Disability Accommodation Guidelines (SDA Guidelines)[8] provide information about this type of accommodation for eligible participants, namely people with disability who have an extreme functional impairment or very high support needs.
[8] T-17, p 240
The National Disability Insurance Scheme Pricing Arrangements for Specialist Disability Accommodation 2021 – 2022[9] set out the payment rules for providers in relation to an NDIS participant who resides in a specialist dwelling. They include details about design categories, building types and price limits for SDA types and locations.
[9] Exhibit 1, Further Supplementary T-documents (FST) 16, p 184
NDIS PLAN
In her NDIS plan[10] that commenced on 16 March 2021, Ms Paterno described her goals. In the first of her two short-term goals she stated that she wanted to move to a new home that suited her needs, to enable her to be independent and with appropriate support to achieve her life goals. The second short-term goal repeated her wish to increase her overall independence with the assistance of supports, therapies, modifications and equipment. At that time, the profile in her NDIS plan indicated that she was residing in supported independent living (SIL) accommodation in Nowra with four others, while wanting to move to Wollongong into her own apartment.
[10] T-12, p 96
The medium- or long-term goals set out in the NDIS plan included her wish to build her independent living skills domestically and with budgeting. Those goals included an ambition to attend a TAFE or community college and a goal to explore options for employment and building employment skills.
The funding of supports in Ms Paterno’s NDIS plan included funding for core supports, capacity building supports and capital supports. Within the budget for core supports there was provision for funding for SIL with two other people.
Subsequently, Ms Paterno initiated a request for an internal review of her NDIS plan in relation to the funding for accommodation. The essence of the request is evident from NDIA interaction notes[11] which highlighted Ms Paterno’s concerns about lack of privacy, lack of control, limitations with space, and unsuitability of a dwelling which did not reflect her support needs and impeded her ability to complete daily tasks.
[11] T-8, p 46
In its internal review, a delegate of the CEO of the Agency considered the request for an individual SDA residence and provided reasons for rejecting the request. That meant that Ms Paterno’s NDIS plan remained in place without change. In correspondence dated 28 June 2021[12] the delegate explained that Ms Paterno had been approved for SDA on 21 April 2020 in the category high physical support, house, three residents, location in New South Wales, specifically Southern Highlands and Shoalhaven. Following a request in December 2020, the same level of support was confirmed, as the Agency did not consider there was sufficient information to justify an individual residence. The correspondence highlighted the internal reviewer’s interpretation of section 34(1) of the NDIS Act in relation to Ms Paterno’s circumstances, with the conclusion that the available information did not support a finding that an individual residence, in contrast to the current three-person residence, was either value for money (s 34(1)( c)) or effective and beneficial (s 34(1)(d)).
[12] T-1A, p7
EVIDENCE
Ms Paterno received a provisional offer, subject to funding, for a two-bedroom high physical support SDA unit at 35 Kenny Street Wollongong.[13]. A brief history of events leading up to this offer is contained in her statement of lived experience,[14] which she wrote on 8 October 2021. In that statement she confirmed that she moved from her family home in a country town in February 2020. She found accommodation in a group home in Nowra. By September 2020, she became aware of a vacant SDA apartment. With assistance from her support coordinator, she lodged an application for that accommodation. Ultimately the application did not succeed, and she was obliged to move to another group home. She lodged a review for reassessment of her SDA level. By early 2021, while waiting for the results of this reassessment, she moved to another group home in Wongawilli, quite some distance away. She still resides there. She shares accommodation with two other people, with whom she is unable to have meaningful relationships as their impairments do not coincide at all with hers.
[13] FST 11, P 146, letter from Ms Grimley, Support Coordinator
[14] FST 7, P 126
In that statement of lived experience Ms Paterno summarised her reasons for requesting a sole occupancy two-bedroom SDA unit. She pointed out that she would need support with care and transfers for approximately two hours in the morning and two hours in the evening. Ideally, she would have access to support staff via an on-call buzzer if needed. She described how this form of accommodation and support would be suitable. It would help her to achieve her NDIS plan goals, it would assist her to become a more active member in the community and it would give her more flexibility to enhance her connections with family and friends. Those opportunities were restricted for her in group residences. She described long-term benefits through sole occupancy SDA, which could include improvement in her mental health, greater privacy and reduced reliance on funded person-to-person supports. She wrote: “With the right equipment and in a setting that is right for me, I can live semi-independently (with drop-in support) and want an opportunity to do so.”[15]
[15] as above, p 127
Ms Paterno gave evidence at the hearing. Her evidence included and expanded upon the reasons which she had summarised in her written statement for wanting sole occupancy SDA. The Tribunal accepts that her evidence was honest and reliable.
An occupational therapist, Ms O’Meara,[16] wrote a report on 26 March 2020, which included a summary of Ms Paterno’s impairments from spastic quadriplegia causing difficulty in controlling movements in both arms and both legs. She requires a wheelchair for mobility, while deficits in her physical functioning were described as:
a. Stiff and tight muscles and exaggerated reflexes (spasticity) in the left upper and lower limb, particularly the left hand
b.Variations in muscle tone and postural alignment:
Ms Paterno has a left obliquity and the right hip is externally rotated
Ms Paterno has spasticity causing bilateral extension of the knees
c. Difficulty with precise movements in her bilateral hands such as writing or buttoning a shirt
d. Shaking (tremor) or random involuntary movements
e. Mild scoliosis (requiring bilateral lateral supports when seated in her wheelchair)
[16] FST 1, p 1
This occupational therapy assessment occurred at an early stage of the process for determining suitable housing solutions. At that time, Ms Paterno was residing in emergency short-term accommodation. As discussed above, an application to move into a vacant SDA apartment was not successful, and she found accommodation in a group home, and subsequently another one in early 2021. She renewed her request with the Agency for SDA and remains presently in a group home with two other NIDS participants.
Ms O’Meara’s occupational therapy report included recommendations regarding SDA design category (high physical support) and location (Illawarra region), and these recommendations are not in contention. She noted the features of the SDA design category of high physical support for people with significant physical impairment who require a high level of personal support. This category may include provision for people who require wheelchairs for mobility, structural provision for items such as ceiling hoists and suitable assistive technology, heating and cooling, emergency power solutions and 950 mm minimum door clearances. Ms O’Meara recommended that Ms Paterno reside in the Illawarra region to enable her to maintain close contact with her formal support network and to engage in her capacity building supports.
Although written more than two years ago, Ms O’Meara’s report illustrates the breadth of issues and their inter-connectedness in considering the question that arises now of a one-bedroom residence versus a two-bedroom residence. Ms O’Meara was not focussed so much on that question at that time. In relation to SDA dwelling type, her report noted that Ms Paterno requires a unit which is fully accessible by wheelchair in and around the residence, together with sufficient space to receive support from assistants in nursing (AIN) to complete hoist transfers. Ms O’Meara assessed that Ms Paterno is “fully dependent” on formal supports for instrumental activities of daily living, with an “extremely reduced functional capacity” in mobility, self-care, and self-management. She requires assistance with all self-care, showering and dressing. Accordingly, the overarching recommendation was for an SDA combined with a supported independent living (SIL) approach.[17]
[17] As above, pp 12-13
Sixteen months later, an occupational therapy SDA report dated 15 September 2021. written by Ms Brain, included recommendations for a one-two-bedroom sole occupancy apartment/unit/villa with full accessibility.[18] It is a comprehensive report in similar vein to Ms O’Meara’s report. Ms Paterno was assessed as having an extreme functional impairment, with requirements for care and support in activities of daily living, which include showering, grooming tasks, dressing, toileting, shopping, meal preparation, cleaning, community access and participation, assistance with leisure activities and set-up, transport and medical management. The necessary aids and equipment summarised in the report include the need for a powered wheelchair and air pressure relieving cushion, a mobile hoist and sling, an electric bed and pressure relieving mattress, and an assistant-propelled shower commode with pressure-reducing closed front seat.
[18] FST 3, p 18
Ms Brain’s report also notes that Ms Paterno expressed her aim of developing capacity to undertake safe transfers with a ceiling tract hoist and assistance of only one support worker. She expressed her aim of increasing her capacity and independence in domestic activities such as meal preparation and cleaning the kitchen and bedroom.
In addition to her physical impairments, a psychology report written on 7 October 2021 by Ms Knox[19] set out the results of cognitive and adaptive assessments, and noted that Ms Paterno had been accessing psychology services from May 2020 to address mental health challenges. At that time, Ms Paterno was residing in SIL accommodation in Wongawilli. The report noted that the results of the cognitive assessment should be interpreted with caution because Ms Paterno’s physical limitations may have affected aspects of the testing. The report included comments about Ms Paterno’s wish to become more independent and, as she has capacity for self-management, an on-call model of accommodation would be more appropriate as she does not want or need 24/7 care. The psychology report included recommendations for Ms Paterno to live semi-independently with provision of necessary supports, continuing occupational therapy to assist her with the development of fine motor skills, and prescription of equipment to support her in developing those skills, together with psychology services to assist her with the development of self-confidence.
[19] FST 6, P 114
A psychologist, Ms Gibson, gave oral evidence at the hearing. She wrote a report[20]on 11 May 2022 following three one-hour assessments with Ms Paterno. The report provided results of assessments including findings that Ms Paterno was within the range of persons with severe depression and she suffered from moderate anxiety. Antidepressant medication had been prescribed and related to her anxiety about shared accommodation in which she was residing. Ms Paterno reported to the psychologist that her current accommodation was not appropriate because of unsuitable matching of co-residents. Three women were residing in group accommodation and while Ms Paterno expressed gratitude for NDIS-funded, shared accommodation, the psychology report recommended alternative, sole occupancy accommodation as a high priority. The inappropriate group accommodation was contributing to her level of depression and anxiety. Ms Gibson recommended accommodation and a support model which align with Ms Paterno’s physical functioning, together with her social and intellectual functioning. Otherwise, continuation of the current situation or a similar residential set-up had the potential to lead to further withdrawal, isolation and depression.
[20] FST 8, p 130
In evidence, Ms Gibson confirmed that her assessment and report considered sole occupancy rather than the issue of one-bedroom or two-bedroom SDA. She discussed the importance of Ms Paterno having access to informal support networks, which would have a beneficial effect on her mental health. Secondly, she considered that Ms Paterno’s relationship with her immediate family was important to her, and her desire to increase those family bonds and improve the family relationships were important factors in improving her mental health. Thirdly, Ms Gibson considered that Ms Paterno’s goals are important to her, including employment goals.
An occupational therapist, Ms Alla, gave oral evidence. She wrote two reports (16 May 2022[21] and 3 June 2022[22]). The second report, which was an expansion of the first report, included photos of Ms Paterno’s equipment; specifically, an electric wheelchair, a spare wheelchair, a hoist, a commode, an over bed table, a glass cabinet and a bookshelf, with dimensions provided for each item. It also included a floor plan of the two-bedroom, high physical support SDA located at 35 Kenny Street Wollongong. Ms Alla endorsed the requested supports for Ms Paterno, which were[23]:
funding for SDA building type apartment, two-bedroom, one resident
1:1 support for 4 hours per day in addition to drop in, on site overnight/day assistance for unplanned support on a 24/7 basis
1:1 support for community participation for 12.5 hours per week
location – Wollongong CBD
[21] FST 9, p 136
[22] FST 10, p 139
[23] As above
CONSIDERATION
Division 2 of Part 2 of the SDA Rules concerns eligibility to receive support for SDA. In particular, the participant must have an extreme functional impairment or very high support needs, and must meet needs requirements set out in section 14 of the Rules. Eligibility is not in dispute in this case.
Division 3 of Part 2 of the SDA Rules concerns design, type and location of SDA. Among the factors which the CEO of the Agency must consider for an eligible participant pursuant to s 15 are: the building type, the design category and the area in which the SDA is to be located.
Section 16 of the SDA Rules sets out the matters which the CEO of the Agency, and thus the Tribunal in this review, must have regard to in relation to determining the SDA building type. Schedule 1 to the SDA Rules provides for four building types, namely: apartment; villa, duplex and townhouse; house; or group home. In her NDIS plan Ms Paterno had SDA approval for a house residing with two other people. At the time of the hearing before the Tribunal, the Agency acknowledged that the appropriate building type for Ms Paterno is an apartment comprising one bedroom for one resident. The provisions of s 16 will be considered in further detail.
Section 17 of the SDA Rules concerns the design category. Schedule 2 to the Rules defines five design categories and the features of each of them. Item 5 in those design categories is high physical support. There is no dispute in this case, and the Tribunal accepts, that the appropriate design category for Ms Paterno’s SDA is high physical support.
Section 18 of the SDA rules concerns the location of the SDA. The Agency accepted that the appropriate location is New South Wales – Wollongong (Illawarra). The location is not in dispute and the Tribunal accepts that it is the appropriate location of the SDA.
Before proceeding further, it is helpful to note comments about reasonable and necessary supports made by the Full Court of the Federal Court in National Disability Insurance Agency v WRMF:[24]
… there is no doubt that the contextual use of the phrase [‘reasonable and necessary. supports’] in this Act links it to public funding to be provided to a participant. In that context, the phrase connotes supports which meet a threshold which justifies — by reference to the context, objects and guiding principles of the Act and the facts of the case — the expenditure of public funds for that support, for a particular participant. As we have already explained, the phrase also needs to be understood taking into account what has qualified a person as a participant, and the links between a person’s impairment and their full participation in the community, in the same variety of ways as persons without a disability might choose to participate.
[24] [2020] FCAFC 79 at [151]
In opening submissions, counsel for Ms Paterno reiterated that a second bedroom would have multiple uses. it would be available to accommodate support workers and informal supports, which could include family and friends. Secondly, it would be available for study, which is an important consideration for Ms Paterno as she is studying a certificate course in retail and wants to find paid work on completion of the course. Thirdly, circulation space through the residence must cater to her functional capacities so that she can manoeuvre her wheelchair inside the premises, store her equipment and use the space and facilities safely and readily.
The Agency’s submission identified that Ms Paterno sought approval for two bedrooms for reasons that include a need for storage, increased circulation, minimisation of damage to property, facilitation of study and future work opportunities and a desire to have room for relatives or friends to stay overnight from time to time.[25] It was submitted, however, that increased house size with a second bedroom reflects a desire which is unrelated to the impairment arising out of Ms Paterno’s disability.
[25] Respondent's statement of facts, issues and contentions, 24 June 2022
First, it is necessary to consider the criteria in s 34 (1) of the NDIS Act , as further elaborated in the Support Rules and in the SDA Rules. As the criteria in s 34 (1) are cumulative, a requested support that does not meet all the criteria will not be a reasonable and necessary support for the purposes of s 34 .
Whether the support will assist the participant to pursue the goals, objectives, and aspirations in the participant’s statement of goals and aspirations: s 34(1)(a) of the NDIS Act
Ms Paterno’s NDIS plan goals were summarised previously. In her NDIS plan she acknowledged that she would engage therapeutic supports to assist her with the development of independent living skills. In relation to supports that include modifications and equipment, she acknowledged that she would seek assistance from her support coordinator in the provision of recommendations and quotes for necessary assistive technology and repairs. The medium-term goals refer to developing skills in domestic activities, and pursuit of her study and vocational ambitions. She is already undertaking TAFE studies, with the aim of obtaining qualifications and applying for work. In her oral evidence to the Tribunal she described a realistic plan which she has set for independent living. She moved out of the family home, and she has experienced living in group homes. She has taken advice from allied health practitioners which has been helpful in developing strategies and enhancing advocacy in support of her applications for the type of accommodation that best suits her aspirations and her practical requirements. In relation to her short-term goals, the Tribunal is satisfied that a two-bedroom SDA suits her needs and enhances her capacity for independence. So too, the Tribunal is satisfied that a two-bedroom SDA will assist her medium- to long-term goals in relation to building work skills, exploring and implementing options for work, and maintaining family connections. The evidence is clear and convincing about her drive and determination to achieve her goals and, equally, it is clear from all the evidence that her goals are well considered, appropriately articulated and realistic. The Tribunal is left in no doubt that a two-bedroom SDA will assist her to pursue the goals in her NDIS plan. The requirement in s 34(1)(a) of the NDIS Act is met.
Whether the support will assist the participant to undertake activities to facilitate the participant’s social and economic participation: s 34(1)(b) of the NDIS Act
In her current group accommodation Ms Paterno is hindered in socialising and building friendships. The group home has led to reduced functional capacity and social participation. For example, Ms Brain’s occupational therapy report[26] detailed: a diminution in social participation because Ms Paterno is less comfortable having visitors; she is unable to have her supports met because of the high demands of the other residents; while her capacity to socialise with the other residents is impaired because of the nature of their disabilities. In recommending at that time a one-bedroom, one-resident SDA, Ms Brain considered that it would improve Ms Paterno’s quality of life and life outcomes, it would benefit her in her pursuit of vocational studies and would improve her mental health.
[26] T6, p 30: Report dated 14 April 2021
In her second report,[27] Ms Brain gave consideration to a one-two bedroom, one-resident apartment with supports. She wrote that sole occupancy would assist Ms Paterno in her social and economic participation through increased responsibility and capacity, together with better opportunities to engage in study that could lead to her obtaining employment and developing a social network. The report noted that Ms Paterno’s opportunities for social connections through informal support networks and relationships would be enhanced.
[27] FST 3, p 18, Report dated 15 September 2021
The Tribunal accepts that these observations, which Ms Brain outlined in her reports, are reasonable and well considered. Both of her reports are comprehensive and thorough. These observations in the reports relate well to the oral evidence that Ms Paterno gave at the hearing. Ms Paterno aims to become more active in the community through studying to obtain qualifications and pursuing opportunities for work. The Tribunal is satisfied that the requirement regarding social and economic participation is met through the provision of a two-bedroom SDA.
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: s 34(1)(c) of the NDIS Act
On behalf of the Agency, it was submitted[28] that the support which Ms Paterno seeks can be met by cost-effective supports: namely, SDA building type with one bedroom. In such accommodation, sufficient storage would be available, and a sofa bed could be used by guests. On a cost benefit analysis, it was submitted that the provision of a second bedroom is not value for money under s 34(1)(c) and not necessary because the benefit is sufficiently addressed by the Agency’s proposal. .
[28] Statement of facts, issues and contentions of the respondent, 24 June 2022
Ms Paterno has mobility equipment, which includes an electric wheelchair, a hoist, a commode, and a spare wheelchair. Her specific, personal furniture includes a glass cabinet, an over-bed table and a bookshelf. The dimensions and photographs of each piece of equipment and furniture were included in Ms Alla’s second report. [29] The items are modest in size and practical in their purpose. The bedside cabinet can be used for medication and personal belongings.
[29] As above
Support Rule 3.1(a) requires consideration of whether there are comparable supports which would achieve the same outcome at a substantially lower cost. The Tribunal was informed that the difference between funding a two-bedroom apartment and funding a one-bedroom apartment is in the vicinity of $26,000 per annum. That appears to be the indication from a price guide in existence prior to 1 July 2022. The SDA funding is provided directly to the SDA provider for the “bricks and mortar” and modifications.[30] The Agency submitted that Ms Paterno has not identified the benefits attributable to the building type category that she sought, which is not otherwise provided by the building category that the Agency has now endorsed . The Agency did not, however, adduce evidence in support of the submission that a one-bedroom apartment, which would be cheaper, would nonetheless be sufficient to deliver the same outcome.
[30] Transcript pp 22-23; Applicant’s statement of facts, issues and contentions at [33]
The Agency acknowledged that Ms Paterno had identified benefits which warranted, in her submission, approval for a two-bedroom apartment. However, the Agency contended that those purported benefits relate to a desire for increased space rather than a need related to her impairment.
Ms Alla’s assessment is important. She summarised the benefits of a two-bedroom set-up. She considered that a second bedroom would assist with circulation space. It would provide space to store equipment. It could be used as a home office. With greater circulation space, the prospect of damage to walls, architraves and skirting is reduced. That type of damage can occur during multiple, daily use of the equipment which Ms Paterno requires. Ms Alla prepared a floor plan[31] as an example of the potential configuration of furniture, equipment and personal items using the layout of the premises at 35 Kenny Street Wollongong to highlight the ways in which a two-bedroom apartment is required and could be used. It takes account of the items and dimensions of Ms Paterno’s equipment, which include the electric wheelchair, hoist, commode, over bed table and spare wheelchair. It factors in the modest items of Ms Paterno’s personal furniture, which principally include a glass cabinet and a bookshelf. It notes the critically important space, physical mechanisms and supports which are required for transfers in the bedroom and bathroom. Obviously, it acknowledges the need for a dining table and chairs.
[31] FST 10 p 139
Ms Alla gave specific attention to the potential use and benefit of a second bedroom. She referred to the studies which Ms Paterno is undertaking in her quest to obtain qualifications and to assist her search for work. There would be sufficient space for a desk and a single bed in the second bedroom. Ms Alla noted that Ms Paterno requires sufficient circulation space to access the desk, and no other storage items or pieces of equipment would be in the second bedroom.
There was a considerable amount of oral evidence about the use of a desk and the set-up of Ms Paterno’s computer. The Tribunal accepts that the way in which Ms Paterno accesses and uses her computer is impacted by her disability. In a one-bedroom apartment the dining table would have a dual use as a table for meals and as a workstation, with the table used as a desk for the computer. This led to evidence at the hearing about computer cords, the computer charger, and plugging cords into the wall. Ms Paterno uses a laptop computer.
Ms Alla gave evidence that a permanent set-up is preferable, particularly if it addresses and meets suitable ergonomic requirements. With extended use of a laptop computer for study, she considered that adaptations may become appropriate. They include items such as a monitor riser and an external keyboard with a separate mouse. She considered that ergonomic factors must be taken into account so that the workstation is not physically hazardous for Mr Paterno in relation, for example, to neck positioning.
Ms Paterno gave evidence about the physical difficulty for her in setting up and subsequently packing up a workstation on a regular basis whenever she needed to study or to work. Attempts in cross-examination to diminish the impacts of those difficulties were not convincing. It was suggested to Ms Paterno that a dining table would be sufficient to cater for plates, cutlery and the laptop. It was suggested that a dining table adjacent to the wall with a power cord to the computer over the side of the table would not be intrusive. It must be remembered, however, that Ms Paterno has limitations in her mobility and in her limb function. She describes her right-hand functioning at about 40 per cent effectiveness and her left-hand function at about 20 per cent. She is wheelchair bound. While it is suggested that appropriate supports could assist in configuring and setting up areas for meal preparation, eating, studying and using a computer, it cannot be overlooked that she has, as the occupational therapist, Ms Brain, described[32]: “a severe functional impairment with completing activities of daily living.’ The physical impairments with mobility and upper limb capacity require Ms Paterno to give extra care and attention to movements and tasks in the ordinary course of daily living. Ms Brain noted that Ms Paterno requires assistance to stabilise food items and cut ingredients, and she has difficulties with fine motor skills and reach. Ms O’Meara’s occupational therapy assessment[33] noted that Ms Paterno’s form of cerebral palsy, namely spastic quadriplegia, involves: “jerking motions that come from stiffness within all four limbs. This creates increased difficulty with mobility and function…”. Ms O’Meara assessed that Ms Paterno is unable to use her left hand to grasp secondary to high spasticity and a tremor, and she must compensate for this problem by using her right hand to grasp items.[34]
[32] FST 3, p 18 at [44]
[33] FST 1, p 1 at p 3
[34] Above at p 9
In closing submissions counsel for the Agency invited the Tribunal to accept that there is sufficient space in a one-bedroom apartment for storage of Ms Paterno’s furniture and equipment, and that Ms Alla’s evidence about storage should not be accepted. Counsel maintained that Ms Paterno’s laptop computer could be adequately located on a table with the power cord aligned at the back of the table between the table and the wall, and in addition the computer might conveniently be located elsewhere at other times, including on the over-bed table. In effect, wherever the computer is, it offers the same attributes. Specifically, on the Agency’s contention, the requirement for a particular desk in a designated office space is not justified.
The Tribunal accepts Ms Alla’s evidence about a second bedroom. The Tribunal is satisfied that a one-bedroom apartment limits necessary circulation space. The Tribunal accepts that the second bedroom is reasonable and necessary to provide space to store equipment and set up a home workstation. Combining the use of a dining table for meals and for a computer workstation is impractical in view of Ms Paterno’s impairments. The Tribunal does not accept that the second bedroom reflects a desire for increased house size that is unrelated to Ms Paterno’s impairments. The Tribunal is satisfied that the provision of a two-bedroom apartment is required to address the limits imposed by the physical impairments.
Support Rule 3.1(b) requires consideration that the support will substantially improve the life stage outcomes of and be of long-term benefit to Ms. Paterno. The Tribunal accepts that a two-bedroom SDA apartment will enhance Ms. Paterno’s ability to study and to undertake work from home. She has been studying for three hours per week for a certificate in a retail course . In her statement of lived experience[35] Ms Paterno also pointed out that sole occupancy SDA would improve her mental health issues, enhance her social life and reduce her reliance on funded person-to-person supports. The Tribunal considers that those propositions are both fair and well-grounded and supported by evidence, including the report[36] of the psychologist, Ms Knox.
[35] FST 2, p 15
[36] FST 6, p 114
Support Rule 3.1(c) requires consideration as to whether the provision of a two-bedroom residence is likely to reduce the cost of the funding of the supports in the long term. Ms Alla reported[37] that: “a property with accessible design features will reduce the need for paid formal supports over time and will increase Ms Paterno’s independence and functional capacity.” Ms Paterno’s aim is to reduce dependence on paid formal supports and increase her own capacity for independent living. Compared with her current group accommodation, a one-bedroom apartment would assist in achieving that aim. However, a two-bedroom apartment would provide Ms Paterno with the necessary space and accessibility to mobilise within the apartment and maximise her capacity for independence in carrying out activities of daily living. Ms. Brain’s occupational therapy assessment[38] with regard to a one-two bedroom residence noted that there will be a reduced need for person-to-person supports over time, by promoting choice and control over the supports in place, and the development of self-care skills such as cooking and shopping online, which can reduce the quantum and cost of paid formal supports .Furthermore, Ms Brain added: “with an appropriate environmental setup (having an accessible kitchen, adequate circulation space in the bedroom and use of a ceiling track hoist) Ms Paterno will require less physical support from care workers to access the sink/cutlery/bench and hoist transfers can reduce from 2 x person assist to 1 x person assist.” The Tribunal is satisfied that a two-bedroom apartment is the most appropriate way in which to reduce the funding and provision of person-to-person supports in the medium to long term.
[37] FST 10, P 139 at [141]
[38] FST 3, p 18
Support Rule 3.1(f) concerns the effect of the support on a participant’s independence and reducing the need for other kinds of supports. Ms Paterno has realistic aims for increasing her independence and has a strong desire to exercise more control and greater autonomy in her day-to-day life. Her aims are realistic and the allied health evidence supports her. Ms Alla considered that Ms Paterno has the capacity to learn how to access and prepare food items either independently or with minimal 1:1 support. Ms Paterno currently uses 2:1 support for mobile hoist transfers. Her preference would be for a ceiling track hoist with 1:1 support, which would reduce the cost of paid formal supports. With appropriate configuration of equipment and furniture in a more spacious two-bedroom apartment this aspect of personal capacity building is a realistic consideration.
The Agency contended[39] that that the evidence does not demonstrate that Ms Paterno’s impairment is relevantly related to her disability to enable a conclusion that there is a need that justifies outlay of public funds and that the need is reasonably and necessarily addressed by the requested support. The Tribunal does not accept that contention. On the contrary, the Tribunal is satisfied that the two-bedroom SDA meets the criteria in s 34(1)(c) of the NDIS Act.
Whether the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice: s 34(1)(d) of the NDIS Act
[39] As above, at 35.6
In its statement of facts, issues and contentions, the Agency submitted that two-bedroom apartments are specifically designed for people with dependents, and those who are residing with another person and sharing supports.
The Tribunal accepts the reasoning which Ms Alla provides in her second report (3 June 2022).[40] In that report Ms Alla provides detailed reasons why the two-bedroom SDA should be effective and beneficial for Ms Paterno in improving her connections to informal supports, preventing a deterioration in her mental health, and enhancing her capacity to move about safely within an apartment which has appropriate space for furniture ,equipment and storage. A second bedroom will enable her to study and also provide a spare bed for a guest, while providing a suitable environment in which to build her capacity and independence in more aspects of daily living.
[40] FST 10, p 139
Ms Paterno’s aims for independent living or, as she describes it, a semi-normal ordinary life,[41] are realistic. They are consistent with her recent history over the past two years while moving out of her family home and district and moving elsewhere, exploring options for independent living, and showing resilience in adapting to different models of accommodation. She confirmed in her statement of lived experience that she is fully independent in her intellectual functioning and communication skills, while she enjoys reading and writing, going to the theatre and socialising. She seeks a more settled environment; she wants to be more involved in the community; and she wants to have relationships. The Tribunal accepts that a two-bedroom SDA is a support which will be effective and beneficial for her. The evidence of allied health practitioners which was presented in this review provides confirmation of the positive and beneficial effects which are likely to follow from the provision of the support.
Whether 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: s 34(1)(e) of the NDIS Act
[41] FST 2, Statement of lived experience
After moving out of the family home, Ms Paterno’s reliance on the support of family members has diminished to the point now that it has ceased. The Tribunal heard evidence about Ms Paterno’s relationships with her mother and her sisters. Her mother lives in a small country town, which is about a four-hour drive away.
As an adult participant in the NDIS Ms Paterno has a funded network of formal supports. The quantum of care required from support workers will arguably diminish in a settled home environment consisting of a two-bedroom apartment. Her realistic and achievable objective is support in the morning and in the evening with transfers and meals, together with some support for accessing and participating in the community.
It is in the context, therefore, of her increased independence and reduced reliance on family, that Ms Paterno wishes to re-establish and renew her relationship with her family. The Tribunal accepts that it is not possible or realistic for her to travel to her mother’s home and stay with her overnight. It is of considerable importance to Ms Paterno that the second bedroom will provide an opportunity for her mother to stay with her from time to time. Similarly, there is an opportunity for her sister to stay with her. It is accepted that those types of engagement could occur with a guest or a family member staying on a sofa bed in the lounge room of a one-bedroom apartment. However, Ms Paterno’s circumstances viewed in a holistic way would suggest that the two-bedroom apartment aligns better with the principles which underlie the funding for supports under a NDIS participant’s plan. Those principles are set out in s 31 of the NDIS Act. They reflect the corresponding objects of ss 3 and 4 of the NDIS Act about individualised choice and control. The role of families and the relationship between people with disability and their families is to be recognised and respected.[42] Section 31(ca) includes a principle about a participant’s NDIS plan, which requires recognition and respect, where relevant, of the relationship between participants and their families and carers. Where appropriate and where there is agreement, the principles relating to formulation of a participant’s plan should, so far as reasonably practicable, allow for the strengthening of the capacity of families and carers to support the participant in adult life (s 31(da)).
[42] See, for examples, s 4(12) and (12A) NDIS act
There are suggestions in the evidence that the relationships between Ms Paterno and some members of her family have not always been harmonious. Nonetheless, Ms Paterno gave powerful and compelling evidence about the importance of the relationships. Her evidence is complemented by a written statement[43] from her mother, who wishes to see her daughter more frequently, stay with her from time to time and travel long distances to enable those visits to occur. Keeping in mind the restrictions associated with Ms Paterno’s physical impairments, it is clear that a second bedroom would enhance opportunities for members of her family to visit and to stay with her . Those engagements will be important for her to influence the ways in which her relationships with family members can be strengthened.
[43] FST 14 P 160
The Tribunal finds that the criterion in s 34(1)(e) is met.
Consideration of the SDA Rules is also required.
SDA Rules
Section 16 of the SDA Rules sets out criteria in sub paragraphs (a) to (m) which must be considered to determine the appropriate SDA building type.
With regard to the first four provisions of s 16, the Tribunal is satisfied, for the reasons canvassed above, that a sole-occupancy two-bedroom residence is in accordance with Ms Paterno’s preference and aligns with her NDIS plan goals (s 16(a)), and that the features of that building type appropriately reflect her individual needs, the extent of her person-to-person support needs, and the type of support needs (s 16(b), (c) and (d)).
Section 16(e) of the SDA rules refers to the concept of value for money within the legislative scheme and is addressed above in these reasons about the criteria in 34(1)(c) of the NDIS Act.
Section 16(f) refers to the impact of the building type on a participant’s social and economic participation. It is addressed in these reasons above in relation to s 34(1)(b) of the NDIS Act.
Section 16(g) requires consideration of cultural and community connections. Ms Paterno’s two-bedroom accommodation will assist with planned connections in her local community, and it will assist to facilitate family connections in the way that the Tribunal has discussed above.
Section 16(h) requires consideration of risks. The occupational therapy report by Ms Brain addressed this criterion in relation to a one-two bedroom sole occupancy apartment/villa and noted: “… residing in a sole occupancy SDA will enable her to engage her own support workers in a long term stable residence with individual tailored supports that will aim to promote her capacity and reduce her symptoms.”[44] Those symptoms were ones arising out of Ms Paterno’s mental health issues which are, in turn, related in part to her group accommodation.
[44] FST 3, p 18
Section 16(i) requires consideration of life stage outcomes and long-term benefits to the eligible participant. As discussed in the consideration of the criteria in s 34(1)(c), the Tribunal is satisfied that the two-bedroom SDA should improve the life stage outcomes and be of long-term benefit to Ms Paterno. The expected outcomes and benefits are notably in the development of skills for independent living, capabilities in domestic self-support, study, opportunity for employment and increased participation in the community, and improvement in mental health.
Section 16(j)(i)(ii)(iii) and (iv) refer to a participant’s capacity or capabilities in relation to daily functioning, skill development and independent living skills, the benefit and effectiveness of supports for the enhancement of a participant’s skill developments including independent living skills, and opportunities for moving to lower-cost accommodation through a transition period with intensive supports. In her consideration of these criteria Ms Brain reported on the enhanced environmental access and circulation space having a positive impact on Ms Paterno’s daily functioning, enhancement of independent living skills through greater opportunities to participate in domestic tasks, and increased functional capacity through increased effectiveness of the targeted supports.[45] The Tribunal has had regard to all those factors in its discussion of the criteria in s 34(1)(b), (c), (d) and (e). The Tribunal accepts Ms Brain’s assessment and does so in the context of a two-bedroom SDA
[45] FST 3, p 18
Section 16(k) requires consideration of informal supports and the extent to which they may reduce the cost of other supports. The Tribunal has discussed the ways in which increased independence in a two-bedroom SDA will be likely to benefit Ms Paterno. With greater community involvement comes the possibility, and even the likelihood, of a range of informal supports which could include a space, as Ms Brain reported,[46] to host and develop friendships.
[46] As above
Section 16(l) requires consideration of the extent to which the building type facilitates the provision of other supports or hinders their provision. For the reasons already given, the Tribunal considers that the two-bedroom SDA will facilitate the provision of other supports which Ms Paterno requires. To the extent that a comparison is helpful , the Tribunal considers that a one-bedroom SDA would, by comparison with a two-bedroom apartment, inhibit the effectiveness of those supports.
Finally, section 16(m) of the SDA rules requires consideration of the extent to which the building type facilitates access to other support or specialist services not funded by the NDIS. While the geographic location is likely to be more relevant in this regard, Ms Paterno’s increased independence and capacity building skills will inevitably be associated with increased access to the local community which, in turn, may increase opportunities to access other supports and services which are not provided through the NDIS
The support is most appropriately funded or provided through the NDIS 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 the reasonable adjustments required under a law dealing with discrimination based on disability: s 34(1)(f) of the NDIS Act
The test under s 34(1)(f) is whether the support is most appropriately funded through the NDIS, and it refers to the appropriateness of the source of funding and not to the support itself. The Tribunal is satisfied that the supports requested in this case satisfy the other requirements for funding and it follows that the requirements of s 34(1)(f) are met.
Section 3(3) of the NDIS Act requires consideration of the need to ensure the financial sustainability of the NDIS. The questions about value for money have been considered in these reasons and, in particular, in the consideration of the criteria in s 34(1)(c). Clearly, there is an additional annual cost differential between a one-bedroom apartment and a two-bedroom apartment. However, the evidence about the additional cost of a two-bedroom apartment is not accompanied by evidence that the financial sustainability of the NDIS will be at risk. The Tribunal has regard to all of the evidence about the requested support. As discussed, that evidence indicates that a two-bedroom SDA will facilitate a reduction in the need for person-to-person supports. That is clearly Ms Paterno’s objective. Although only time will tell whether it can be achieved, and what the cost savings might be, the recent history indicates that Ms Paterno is determined to increase her independence and reduce reliance on NDIS-funded support workers. Thus far, she has demonstrated considerable success in making progress with her short-term goals. Those achievements resonate well with the general principle enunciated in s 4(4) of the NDIS Act, namely: “People with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports.”
Counsel for the Agency submitted that the availability of an apartment in the SDA location is not relevant to the question of whether it is reasonable and necessary. As a practical consideration for Ms Paterno, the possible availability of the premises at 35 Kenny Street Wollongong is highly relevant to her. However, the decision in this review is not a decision to endorse funding for those particular premises. The effect of the decision will be approval for the provision of funding that would enable Ms Paterno to access that accommodation if it is still available and if she chooses it. Counsel for the Agency referred to the explanation in the Specialist Disability Accommodation Provider and Investor Brief[47]about the provision of SDA funding in the accommodation market, with its aim of providing greater choice of accommodation and support models. As that briefing document confirms, SDA funding is paid only to a provider who is registered with the Agency and has an “enrolled and compliant dwelling.” With SDA funding approved in an individual participant plan, “eligible participants receive funding in their plan that they can then use to approach the market to find an enrolled dwelling that meets their needs.” As a result of this review, Ms Paterno will be provided with sufficient funding in her plan to find such a dwelling.
[47] FST 17, p 219
CONCLUSION
For the reasons set out above, the Tribunal is satisfied that funding of a sole occupancy two-bedroom SDA is reasonable and necessary within the meaning of s 34(1) and related provisions of the NDIS Act.
DECISION
The decision under review is set aside and in substitution a decision made that Ms Paterno is entitled to SDA funding as follows:
(a) Building type – apartment, sole occupancy, two bedrooms
(b)Design category – high physical support
(c)Location – NSW – Illawarra
(d)Funding up to $126,162.57 per year
I certify that the preceding 89 (eighty-nine) paragraphs are a true copy of the reasons for the decision herein of Member Thompson
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Associate
Date of Decision: 21 November 2022 Date of Hearing: 28 and 29 June 2022 Counsel for the Applicant: Ms M O’Brien
Sixth Floor Selborne/Wentworth ChambersCounsel for the Respondent:
Mr M Gollan
Seven Windeyer Chambers
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