Pavilupillai and National Disability Insurance Agency - [2018] AATA 4641

Pavilupillai and National Disability Insurance Agency [2018] AATA 4641 (13 December 2018)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2017/7530
Re:Antonet Pavilupillai
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION

Tribunal:Deputy President S A Forgie
Date:13 December 2018
Place:Melbourne

The Tribunal:

1.affirms the decision of the respondent dated 28 November 2017 confirming a decision dated 24 January 2017 and refusing to approve an Anchor Kit for a left and a right high heel foot section or the manufacture of left and right high heel foot sections on the applicant’s Knee Ankle Foot Orthoses.

...................[sgd]...................................................

Deputy President S A Forgie

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – reasonable and necessary supports – identification of decision under review – whether funding for left and right high heel foot sections reasonable and necessary – objects of the NDIS – whether support facilitates social and economic participation – whether support is value for money – whether support effective and beneficial for participant – decision affirmed

Legislation

Administrative Appeals Tribunal Act 1975

National Disability Insurance Scheme Act 2013

National Disability Insurance Scheme (Plan Management) Rules 2013

National Disability Insurance Scheme (Supports for Participants) Rules 2013

Social Services Act 1947

Cases

McGarrigle v National Disability Insurance Agency [2017 FCA 308; (2017) 252 FCR 121

Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273; 128 ALR 353
Re Gee and Director-General of Social Services (1981) 58 FLR 347; 3 ALD 132

Re RC and Director-General of Social Services (1981) 3 ALD 334

Yolbir v Administrative Appeals Tribunal and Anor (1981) 58 FLR 347; 3 ALD 132

Secondary Materials

Explanatory Memorandum to the National Disability Insurance Scheme Bill 2013

National Disability Strategy 2010-2012

Pearce and Geddes, Statutory Interpretation in Australia, 8th edition, 2014

United Nations Convention on the Rights of Persons with Disabilities

REASONS FOR DECISION

Deputy President S A Forgie

Since 21 October 2016, Ms Pavilupillai has been a participant under the National Disability Insurance Scheme (NDIS) established under the National Disability Insurance Scheme Act 2013 (NDIS Act). Although Ms Pavilupillai expressed her satisfaction with her participant’s plan and the statement of participant supports included in that plan, she has applied to the Tribunal for review of the decision by a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (Agency) not to approve an Anchor Kit for a left and a right high heel foot section or the manufacture of left and right high heel foot sections (high heel foot sections) on her Knee Ankle Foot Orthoses (KAFOs).

Ms Pavilupillai’s participant’s plan included a statement of participant supports that provided for funding of KAFOs for two situations: general use and those situations at the pool or beach where they would get wet. The high heel foot sections would enable her to wear high heeled shoes when she chose and felt physically able to. I have decided that the high heel foot sections meet s 34(1)(a) and it is agreed between the parties that they meet ss 34(1)(e) and (f). I am not satisfied, however, that they satisfy ss 34(1)(b), (c) or (d). Therefore, I am not satisfied that high heel foot sections are reasonable and necessary and affirm the Agency’s decision not to fund them under the NDIS.

IDENTIFYING THE STATEMENT OF PARTICIPANT SUPPORTS UNDER REVIEW

Identifying the decision under review

Ms Pavilupillai’s first participant plan was approved on 29 November 2016 (First Plan).[1] It was scheduled for review on 29 November 2017. Before that review was conducted, a delegate of the CEO of the Agency approved a further statement of participant supports under s 33 of the NDIS Act. The delegate made that decision on 24 January 2017 and the result was the preparation of a further participant’s plan, which was scheduled to be reviewed on 24 January 2018 (Second Plan).[2]
[1] T documents; T13 at 59-65
[2] T documents; T14 at 66-73. The only difference between the First Plan and the Second Plan was an additional support budget of $1,606 for transport in the Second Plan.

On 12 April 2017, the Agency advised Ms Pavilupillai that her participant’s plan had been approved with effect from 11 April 2017 (Third Plan).[3] On 21 April 2017, Ms Pavilupillai requested a review of the statement of participant supports because that statement omitted reference to high heel foot sections as an approved support. A decision to approve a statement of supports in a participant’s plan is made under s 33(2). A decision under s 33(2) is a reviewable decision under s 99(d) of the NDIS Act. Ms Pavilupillai recited a reference number.[4] That reference number appears on all of the Agency’s letters to her. Given that a participant may request the CEO to conduct a review of the reviewable decision made under s 33(2) within three months under s 100(2),[5] it is not possible to know whether Ms Pavilupillai was seeking review of the Second Plan or of the Third Plan. Her application was within three months of the decisions made approving the participant’s statement of supports in both the Second and Third Plans. The Agency’s letter dated 28 November 2017, does not identify the decision that is under review.

[3] T documents; T15 at 74-88

[4] T documents; T11 at 48

[5] See further [8] below

On my reading of the Second Plan and the Third Plan, there are no differences between the two other than the review date, which was said to be 11 April 2018 for the Third Plan. In this case, it does not matter as it may in some matters for the statement of goals and aspirations as well as the statement of participant supports that has been approved are the same. The issue in dispute remains the same and timing is not relevant as it would be if the issue were, for example, supports in the form of reimbursement for particular expenditure over the life of one plan or the other.

On 28 November 2017, a different delegate of the CEO decided “… not to change the decision to include funding in your plan for the ‘high-heeled foot sections’ on your KAFO’s.”[6] No reference was made to whether the review was conducted under s 48(1) of the NDIS Act at the CEO’s initiative or under s 100(6) in response to Ms Pavilupillai’s request. The decision was not expressed in terms of confirming, varying or setting aside the reviewable decision and substituting a new one as required by s 100(6) when a review is conducted in response to a request under s 100(2). Despite the expression of the decision in that way, the delegate advised Ms Pavilupillai that she could apply for review in the Tribunal. Equally, the decision did not lead to the preparation of a new plan that would have been required by s 49 had the review been conducted under s 48.
[6] T documents; T2 at 9

Taking all into account, I have decided that the decision under review was made under s 100(6) and not under s 48. Therefore, Ms Pavilupillai was entitled to make the application for review to the Tribunal in respect of the decision made by the delegate on 28 November 2017 effectively confirming the earlier decision dated 24 January 2017. Whether the decision was made in respect of the Second Plan or the Third Plan is of no consequence for the reasons I have given. I will refer to them simply as the “Plan”.

Identifying the decision made under section 100(6)

Section 103 provides that an application may be made to the Tribunal “… for review of a decision made by a reviewer under subsection 100(6).” The decision made by a reviewer under s 100(6) is a decision:
“(a) confirming the reviewable decision;
(b)varying the reviewable decision; or
(c)setting aside the reviewable decision and substituting a new decision.”

Is it the decision that is made under s 100(6) that is under review or is it the operative decision that is left after the reviewer has made a decision that is under review? If, for example, the reviewer were to set aside a statement of participant’s supports and substitute another, would it be the reviewer’s decision to make that decision that is under review or is it the substituted statement of participant’s supports that is under review i.e. an operative decision that affects a participant’s rights under the NDIS Act? It may seem a question of small consequence but it influences the way in which the Tribunal frames its own decision and even the way in which it frames its task on review. Is the Tribunal to ask itself whether the correct or preferable decision is to confirm, vary or set aside and substitute a reviewable decision made, in this case, under s 100(6) or is it to ask itself whether the correct or preferable decision is to approve the statement of supports in terms of s 33(2)? Perhaps in many instances, the outcome will be the same at the end of the review process but focusing on the form of the decision carries with it the danger that the Tribunal will be tempted to review the decision under s 100(6) as if carrying out a judicial review of that decision. If that happens, attention will be diverted from the substantive decision under s33(2) and that must be at the heart of this review.

This follows from cases that have their foundation in the principles set out by Davies J as President and Messrs Cusack and Prowse, Members in Re Gee and Director-General of Social Services[7] (Re Gee). Sections 14 and 15 of the Social Services Act 1947[8] (SS Act) were drafted in terms similar to s 100(6) of the NDIS Act and the decision had been made under s 24A.[9] The Tribunal said:
“… It is a necessary inference from the Administrative Appeals Tribunal Act that the function of the Tribunal is to review on the merits decisions which affect a person's interest: see per Bowen C.J. and Deane J. in Drake v. Minister for Immigration and Ethnic Affairs … and Smithers J. in Collector of Customs (N.S.W) v. Brian Lawlor Automotive Pty. Ltd. …. It is inconsistent with the tenor of the Act that the Tribunal should concern itself not with an operative decision which affects a person's rights but merely with a decision which has simply affirmed or varied the operative decision. Moreover, if the respondent’s arguments were correct, the Administrative Appeals Tribunal would not be able effectively to use the power conferred by s. 43 of its Act to set aside the decision under review and to remit the matter for reconsideration in accordance with any directions or recommendations of the Tribunal. If the only decision which could be set aside were a decision under ss. 14 or 15 of the Social Services Act, an applicant to this Tribunal would be precluded from again coming to the Tribunal should he or she be dissatisfied with the decision made after remission. That decision would not, under current practice, be considered by a Social Security Appeals Tribunal or be subject to appeal pursuant to s. 15. Nor, if the respondent's contention be correct, could the Tribunal exercise its power under s. 41 of the Administrative Appeals Tribunal Act to suspend the operation of the subject decision for, in that event, the decision under review would not be the operative decision. …”.[10]
[7] (1981) 58 FLR 347; 3 ALD 132; Davies J, President, Messrs Cusack and Prowse, Members
[8] Sections 14 and 15 of the SS Act provided:
[9] Section 24A of the SS Act provided: “An invalid pension shall not be granted to a claimant who has ceased to reside in Australia after he has lodged his claim for the pension unless the circumstances are such that the date from which the pension, if granted, would be paid is a date not later than the date on which the claimant ceased to reside in Australia.”
[10] (1981) 58 FLR 347; 3 ALD 132 at 357; 141-142 (citations omitted)

In Yolbir v Administrative Appeals Tribunal and Anor (Yolbir),[11] the Court considered the same issue in the context of the exercise of the Tribunal’s power under s 41(2) of the AAT Act “… to make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates … for the purpose of securing the effectiveness of the hearing and determination of the application for review” is a power that is exercised in relation to the operative decision. There would be no point in staying a non-operative decision such as that made under s 100(6) of the NDIS Act for:
“… A stay of a non-operative decision would plainly have nothing to do with securing the effectiveness of the hearing or the Tribunal’s determination.”[12]
[11] (1994) 48 FCR 246; 33 ALD 8; 19 AAR 15; Davies, Burchett and O’Connor JJ
[12] (1994) 48 FCR 246; 33 ALD 8; 19 AAR 15 at 249; 11; 18

The court in Yolbir referred to an earlier case of Re RC and Director-General of Social Services.[13] The Tribunal, again presided over by Davies J as President, had come to the same view as it did in Re Gee and applied the same principles. The applicant had been granted a Class A widow’s pension in 1972 but a delegate of the Director-General of Social Services (Director-General) had cancelled that pension in January 1978 before again granting it in September 1978. In February 1979, the delegate suspended payment of the widow’s pension after the delegate formed the view that the applicant was living with a man as his wife on a bona fide domestic basis. On 7 December 1979 and after review by the then Social Security Appeals Tribunal, which had only recommendatory powers at the time, the Deputy Director-General, Mr Wryell, dismissed the applicant’s appeal against the suspension of her widow’s pension.

[13] (1981) 3 ALD 334; Davies J, President and Messrs E Smith and S McLelland, Members

One of the issues that arose on RC’s subsequent application for review lodged in the Tribunal centred on a decision made by the President on 22 May 1980 to stay the operation of the decision to suspend RC’s pension pending the outcome of the review. Adopting the principles set out in Re Gee, the Tribunal said:
“… In the course of the hearing before this tribunal it was said that the decision under review was the decision of Mr Wryell of 7 December 1979 and that its suspension would have had no effect, for that decision simply affirmed an earlier decision. But, by the order of 22 May 1980, Mr Justice Davies had in mind that there should be a suspension of the decision of 26 February 1979 by which payment of RC’s pension was suspended. The effect of suspending the operation of that decision was effectively to restore RC’s pension pending the determination of the case. … It has been put to this tribunal that the order was ineffective because suspension of Mr Wryell’s decision would not operate to restore the pension. However, we adopt what was said in Gee’s case in this respect …”.[14]

[14] (1981) 3 ALD 334 at 340-341

There is no reason to suppose that the position is any different in the context of s 100(6) of the NDIS Act. Where the decision in relation to which an application may be made to the Tribunal is a decision confirming or varying another decision or setting that decision aside and substituting another, it is the decision as confirmed, varied or substituted that is the operative decision and not the confirmation or variation or the decision setting one decision aside and substituting another. Certainly, the non-operative decision must be made for otherwise a person will not be entitled to make that application but that is the end of its role in the process of review. It is the confirmed, varied or substituted decision that is under review and that a decision-maker will want to vary at a later time if circumstances change or other matters become known. That is the decision that affects a person’s interests.

BACKGROUND

There is no dispute between the parties regarding the facts that form the background to the issue in dispute. In light of that and particularly in light of the evidence of Ms Pavilupillai and of her treating Orthotist, Mr Darren Pereira, I make the findings set out in this section of my reasons.

Ms Pavilupillai was born in Sri Lanka and came to Australia when she was eighteen months of age. She has completed her primary and secondary education in Australia before completing tertiary education and qualifying as an accountant. Until recently, Ms Pavilupillai was undertaking a counselling degree at university but she has deferred her studies. She works full-time with the Australian Taxation Office (ATO) as an auditor and has done so for five years. For some eight months, Ms Pavilupillai was seconded to a position as prosecutor. She is able to attend professional meetings, conferences and dinners as required. Ms Pavilupillai has a very large support network of family and friends. Her friends are happy to accompany her wherever she wants to go and particularly so if there is no train route that enables her to undertake the journey herself.

As a result of contracting polio as an infant, she suffers from very severe muscle weakness in both of her legs and in both of her arms as well as in her trunk and pelvis. Ever since she was an infant, Ms Pavilupillai has worn KAFOs, on both of her legs in order to stabilise her foot, ankle and knee joints. Under the NDIS, the Agency has approved two types of KAFO for Ms Pavilupillai. One is for general wear and the other is a waterproof version and enables her to participate in activities at the pool or beach.

As Ms Pavilupillai has no muscle power below the level of her knee at all, the foot and ankle sections of her KAFOs have always been designed as a Solid Ground Reaction Ankle Foot Orthosis (GRAFO). The GRAFO controlled her flail foot/ankle complex and placed the limb in an optimal position for initial contact. The practical outcome was that the position of the GRAFO was fixed and could only be used with a shoe of a particular heel height. Ms Pavilupillai’s KAFOs also have knee joints. The knee joint on one leg has been fully locked at all times in the gait mode. For the purpose of sitting, she can unlock it by operating a knee joint release that has been attached at hip level. The KAFO for her other leg is supported with a free motion posterior offset knee joint. The thigh sections on both her left and right KAFOs have been designed as a posterior thigh section with anterior straps.

Ms Pavilupillai’s KAFO’s have all been designed to be worn with shoes with heel heights less than 12mm. Had she wanted to wear her KAFOs with heel heights above 12mm, she would have had to acquire entirely new KAFOs. She could not have used KAFOs designed for heel heights less than 12mm with shoes with greater heel heights for to do so would have meant that the orthosis would tilt too far forward in the shoe. One consequence would be that she would have felt that she were falling. Another would have been that there would have been a very high risk that she would actually fall and possibly fracture a bone or bones.

In October 2015, the Posterior Dynamic Element (PDE) orthosis was released globally. The PDE orthosis is a carbon fibre strut that connects to the foot and tibial sections of a KAFO. It comes in three different lengths – 200, 250 and 300mm – and each length of strut is available in seven different levels of stiffness. The PDE orthosis contains a stainless steel anchor that is placed posteriorly on a person’s calf and Achilles’ regions. It is held in place by four screws that a clinician or the person wearing it may change. They might want to alter it in order to change the stiffness of the strut, the plantarflexion dorsiflexion angle of the foot section with respect to the calf and the internal/external rotation of the foot with respect to the calf. The practical outcome is that a person wearing KAFOs could wear the same calf and thigh sections as well as the same knee joints and PDE strut but have multiple foot sections for different purposes without having to remake the KAFO entirely.

I accept Ms Pavilupillai’s evidence that she has very limited mobility and always has had. She cannot walk long distances due to her becoming fatigued. The most that she can walk is 15 or 20 minutes at a time. She does that with the aid of a crutch. When she is at the office, Ms Pavilupillai walks with the aid of a stick. She could walk for a few steps without the walking stick but, for safety’s sake, she does not. To travel to her workplace and to other destinations, Ms Pavilupillai uses a motorised scooter. She does not use the KAFOs when she sleeps and can walk a few steps to her bathroom but, once she has showered, she wears them for every other activity during the day.

Ms Pavilupillai’s back becomes sore and she suffered increased back pain in 2014. That led to her starting to practise Pilates in order to strengthen her core. Ms Pavilupillai found that her increased core strength made a huge difference to her. It enabled her to be more mobile and to exercise more than she had. Mr Pereira made splints for her so that she could walk on a treadmill three times each week and at a much higher speed than she had ever walked in the past. The difference was that Mr Pereira had introduced a PDE. Ms Pavilupillai thought that its flexibility had helped her to increase her speed from 3.9 to 4.5 on the treadmill. With increased walking, Ms Pavilupillai has worn out her splints more quickly. That has meant that she has needed new splints more often but there is another reason why she has required them more often than in earlier years. Her increased exercise regimen has developed her muscles and meant that she has had to have her KAFOs replaced entirely when her increased muscle tone led to them becoming very tight and cutting into her flesh.

Since she became a participant of the NDIS, the CEO of the Agency has approved five participant’s plans for Ms Pavilupillai with two of them being made after she had requested review. The first is dated 29 November 2016 and, among other supports, provided funding for her identified assistive technology needs based on an assessment from a relevant therapist. Any further funding for assistive technology needed was to be considered based on recommendations submitted from a relevant practitioner to the NDIS in the form of an assessment and quotation. Any such submission would be considered against the reasonable and necessary criterion.

A further plan was approved by a delegate of the CEO on 24 January 2017. As this is the plan at the foundation of the matter I must consider, I will set it out in more detail. After explaining her home life, work and study, Ms Pavilupillai stated that she relied on trains to travel to the city to work and other destinations or, when the trains were not running, taxis. Under the heading of “informal supports”, Ms Pavilupillai notes that her parents also assist her with transport when there is no train route. She has access around the office and walks on a treadmill at home three times each week while using her splints. Ms Pavilupillai stated that her first goal was to have new splints to enable her to walk around. The second was to be supported to learn to drive a car to enhance her independence. A car with appropriate modifications was also listed as a longer term goal and aspiration relating to her daily life. A further goal was to be supported to attend Pilates each week for her health and wellbeing as well as muscle strength.

Part 3 of the plan set out the NDIS reasonable and necessary support budgets. It includes a statement that:
“I can choose how I spend the amount in each budget listed below by checking the NDIS price list and the matching supports on the NDIS website at ndis.gov.au/participants
Where a support is listed in my plan as ‘stated’, I must purchase this support as it is described in my plan. I cannot swap ‘stated’ supports for any other supports.

Support Area: Assistive technology

Budget: $750

Details: Funding for repairs & maintenance of assistive technology

How will the supports be paid: NDIS will pay my support provider directly for these supports

Support Area: Improved daily living

Budget: $3,255,70

Details: Funding for an allied health professional or therapist to assess and provide support in assisting you to meet your goals of mobility, strength & stamina, & improving your daily routines and assistive technology.

How will the supports be paid: NDIS will pay my support provider directly for these supports

Support Area: Improved health and wellbeing

Budget: $3,428.64

Details: Funding to assist you to develop and maintain muscle strength through exercise physiology.

How will the supports be paid: NDIS will pay my support provider directly for these supports

Support Area: Support coordination

Budget: $1,845.40

Details: Support coordination to assist you to achieve the goals in this plan through providing assistance to choose and coordinate providers, develop service agreements, manage the funding in this plan, use the participant portal, find and link with appropriate services, organisations and activities in the community, resolve queries or concerns that may arise and develop goals for future plans.

How will the supports be paid: NDIS will pay my support provider directly for these supports

Support Area: Transport

Budget: $1,606.00

Details: A contribution to your transport costs to be paid to your nominated bank account

How will the supports be paid: NDIS will pay me directly for these supports

Support Area: Core supports

Budget: $17,357.44

Details:
Funding for your identified assistive technology needs based on an assessment from a relevant therapist.
Any further funding for your assistive technology needs is to be considered based on recommendations submitted from a relevant practitioner to NDIS (completed assessment and relevant quote). This recommendation will be considered against the reasonable and necessary consideration.

Establishment fee to cover providers establishing arrangements for your community access. Individual assistance to support you to attend and participate in community, social and recreational activities of your choice at the Standard Level.

How will the supports be paid:

NDIS will pay my support provider directly for these supports”[15]

[15] T documents; T14 at 66-73

THE SUBMISSIONS

During the course of the hearing, Ms Pavilupillai indicated that, except in so far as the high heel foot sections were concerned, she was very happy with her existing plan. With respect to the high heel foot sections, Ms Pavilupillai said that she would be content with taking approximately half of the funding allocated to her “core supports” and reallocating it to enable her to purchase assistive technology. As matters stand, she expects that she will need only half the funding allocated to her core supports.

LEGISLATIVE BACKGROUND

The objects of the NDIS Act include that of being one of the laws giving effect to certain obligations under certain treaties to which Australia is a party, but they also extend beyond that. The objects are set out in s 3(1) of the NDIS Act and are:
“(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 launch; 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
(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; and
(i)in conjunction with other laws, give effect to certain obligations that Australia has as a party to:
(i) the International Covenant on Civil and Political Rights done at New York on 16 December 1966 ([1980] ATS 23);
(ii) the International Covenant on Economic, Social and Cultural Rights done at New York on 16 December 1966 ([1976] ATS 5); and
(iii) the Convention on the Rights of the Child done at New York on 20 November 1989 ([1991] ATS 4); and
(iv) the Convention on the Elimination of All Forms of Discrimination Against Women done at New York on 18 December 1979 ([1983] ATS 9); and
(v) the International Convention on the Elimination of All Forms of Racial Discrimination done at New York on 21 December 1965 ([1975] ATS 40).
Note:…”

Section 3(2) provides that the objects are to be achieved by:
“(a) providing the foundation for governments to work together to develop and implement the National Disability Insurance Scheme launch; and
(b)adopting an insurance-based approach, informed by actuarial analysis, to the provision and funding of supports for people with disability.”
The reference to the “National Disability Insurance Scheme launch” is a reference to the arrangements set out in Chapter 2 and, in relation to people who meet the residence requirements because of their residence in a prescribed area and because they meet any age requirements, the arrangements set out in Chapter 3 of the NDIS Act. A reference to the “National Disability Insurance Scheme” is a reference to the arrangements set out in Chapter 2 and, in so far as it applies to persons meeting the residence requirements or not being required to, Chapter 3.[16]
[16] NDIS Act; s 9

In giving effect to the objects of the NDIS Act, s 3(3) provides that:
“… regard is to be had to:
(a) the progressive implementation of the National Disability Insurance Scheme; and
(b)the need to ensure the financial sustainability of the National Disability Insurance Scheme; and
(c)the broad context of disability reform provided for in:
(i)the National Disability Strategy 2010-2020 as endorsed by the COAG on 13 February 2011; and
(ii)the Carer Recognition Act 2010; and
(d)the provision of services by other agencies, Departments or organisations and the need for interaction between the provision of mainstream services and the provision of supports under the National Disability Insurance Scheme.”
Section 4 sets out 17 general principles guiding actions under the NDIS Act. I will set out only those that are directly relevant to this case:
“(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 to the extent of their ability.
(3)People with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime.
(4)People with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports.
(5)People with disability should be supported to receive reasonable and necessary supports, including early intervention supports.
(6)…
(7)…
(8)People with disability have the same right as other members of Australian society to be able to determine their own best interests, including the right to exercise choice and control, and to engage as equal partners in decisions that will affect their lives, to the full extent of their capacity.
(9)…
(10)…
(11)Reasonable and necessary supports for people with disability should:
(a)support people with disability to pursue their goals and maximise their independence; and
(b)support people with disability to live independently and to be included in the community as full participating citizens; and
(c)develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment.
(12)…
(13)…
(14)People with disability should be supported to receive supports outside the National Disability Insurance Scheme, and be assisted to coordinate these supports with the supports provided under the National Disability Insurance Scheme.
(15)Innovation, quality, continuous improvement, contemporary best practice and effectiveness in the provision of supports to people with disability are to be promoted.
(16)Positive personal and social development of people with disability, including children and young people, is to be promoted.
(17)It is the intention of the Parliament that the Ministerial Council, the Minister, the Board, the CEO and any other person or body is to perform functions and exercise powers under this Act in accordance with these principles, having regard to:
(a)the progressive implementation of the National Disability Insurance Scheme; and
(b)the need to ensure the financial sustainability of the National Disability Insurance Scheme.”

Section 6 provides that:
“To support people with disability to exercise choice and control in the pursuit of their goals, the Agency may provide support and assistance (including financial assistance) to prospective participants and participants in relation to doing things or meeting obligations under, or for the purposes of, this Act.
Note:For example, the Agency might assist a participant to prepare the participant’s statement of goals and aspirations by assisting the participant to clarify his or her goals, objectives and aspirations.”

There is no question that Ms Pavilupillai is a participant in the National Disability Insurance Scheme launch as she meets the access criteria under Part 1 of Chapter 3 of the NDIS Act. Chapter 3 begins with a statement of the principles relating to the participation of people with a disability:
“(1) People with disability are assumed, so far as is reasonable in the circumstances, to have capacity to determine their own best interests and make decisions that affect their lives.
(2)People with disability will be supported in their dealings and communications with the Agency so that their capacity to exercise choice and control is maximised.
(3)The National Disability Insurance Scheme is to:
(a)respect the interests of people with disability in exercising choice and control about matters that affect them; and
(b)enable people with disability to make decisions that will affect their lives, to the extent of their capacity; and
(c)support people with disability to participate in, and contribute to, social and economic life, to the extent of their ability.”

Once she became a participant, the CEO of the Agency was required to facilitate the preparation of her plan in accordance with the National Disability Insurance Scheme rules[17] and with Division 2 of Part 2 of Chapter 2. A participant’s plan must include a statement, known as the participant’s statement of goals and aspirations, prepared by the participant and, if not written by the participant, recorded in writing by the Agency,[18] and specifying:
“(a) the goals, objectives and aspirations of the participant; and
(b)the environmental and personal context of the participant’s living, including the participant’s:
(i)living arrangements; and
(ii)informal community supports and other community supports; and
(iii)social and economic participation.”[19]
[17] NDIS Act; s 32. Section 209(1) provides that National Disability Insurance Scheme rules may be made by the Minister by legislative instrument. They may prescribe matters required or permitted to be prescribed by the NDIS Act or necessary or convenient to be prescribed in order to carry out, or give effect to, that Act. Sections 209(2) to (8) make specific provision for those rules.
[18] NDIS Act; s 33(8)
[19] NDIS Act; s 33(1)

In addition, the participant’s plan must include a statement, known as a statement of participant supports. That statement will have been prepared with the participant and approved by the CEO. It must specify:
“(a) the general supports (if any) that will be provided to, or in relation to, the participant; and
(b)the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme; and
(c)the date by which, or the circumstances in which, the Agency must review the plan under Division 4; and
(d)the management of the funding for supports under the plan (see also Division 3); and
(e)the management of other aspects of the plan.”[20]
[20] NDIS Act; s 33(2)

The expression “general supports” has the meaning given by s 13(2):[21]
“(a) a service provided by the Agency to a person; or
(b)an activity engaged in by the Agency in relation to a person;
that is in the nature of coordination, strategic or referral service or activity, including a locally provided coordination, strategic or referral service or activity.”

The word “supports” includes “general supports”.[22]

[21] NDIS Act; s 9

[22] NDIS Act; s 9

For the purposes of specifying in a statement of participant supports, the general supports that will be provided and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each support:
“(a) the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
(b)the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
(c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f)the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(i)as part of a universal service obligation; or
(ii)in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.”[23]
[23] NDIS Act; s 34(1)

In deciding whether to approve a statement of participant supports, the CEO must:
“(a) have regard to the participant’s statement of goals and aspirations; and
(b)have regard to relevant assessments conducted in relation to the participant; and
(c)be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and
(d)apply the National Disability Insurance Scheme rules (if any) made for the purposes of section 35; and
(e)have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and
(f)have regard to the operation and effectiveness of any previous plans of the participant.”[24]
[24] NDIS Act; s 33(5)

Section 35 provides that the National Disability Insurance Scheme rules:
“… may make provision in connection with the funding or provision of reasonable and necessary supports or general supports, including but not limited to prescribing:
(a)methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding, the reasonable and necessary supports or general supports that will be funded or provided under the National Disability Insurance Scheme; and
(b)reasonable and necessary supports or general supports that will not be funded or provided under the National Disability Insurance Scheme; and
(c)reasonable and necessary supports or general supports that will or will not be funded or provided under the National Disability Insurance Scheme for prescribed participants.”[25]

The rules made under s 35(1) may relate to the manner in which supports are to be funded or provided and by whom they are to be provided.[26]

[25] NDIS Act; s 35(1)

[26] NDIS Act; s 35(2)

As provided for by s 34(2) of the NDIS Act, the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (NDIS-SP Rules) prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether he or she is satisfied of the matters specified in ss 34(1)(a) to (f) as well as under s 33.[27] The NDIS-SP Rules address ss 34(1)(c), (d), (e) and (f) but the parties agree that ss 34(1)(e) and (f) are not relevant in this case. To put them in their context, I will set out all of the Rules 3.1 to 3.4:
[27] NDIS Act; s 34(2)
“Value for money
3.1In deciding whether the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support, the CEO is to consider the following matters:
(a)whether there are comparable supports which would achieve the same outcome at a substantially lower cost;
(b)whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long-term benefit to, the participant;
(c)whether funding or provision of the support is likely to reduce the cost of funding of supports for the participant in the long term (for example, some early intervention supports may be of value for money given their potential to avoid or delay reliance on more costly supports);
(d)for supports that involve the provision of equipment or modifications:
(i)the comparative cost of purchasing or leasing the equipment or modifications; and
(ii)whether there are any expected changes in technology or the participant’s circumstances in the short term that would make it inappropriate to fund the equipment or modifications;
(e)whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides;
(f)whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of supports (for example, some home modifications may reduce a participant’s need for home care).
Effectiveness and beneficial and current good practice
3.2In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include:
(a)published and refereed literature and any consensus of expert opinion;
(b)the lived experience of the participant or their carers; or
(c)anything the Agency has learnt through delivery of the NDIS.
3.3In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary seek, expert opinion.
Reasonable family, carer and other support
3.4In deciding whether funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide, the CEO is to consider the following matters:
(a)for a participant who is a child:
(i)that it is normal for parents to provide substantial care and support for children; and
(ii)whether, because of the child’s disability, the child’s care needs are substantially greater than those of other children of a similar age; and
(iii)the extent of any risks to the wellbeing of the participant’s family members or carer or carers; and
(iv)whether the funding or provision of the support for a family would improve the child’s capacity or future capacity, or would reduce any risk to the child’s wellbeing;
(b)for other participants:
(i)the extent of any risks to the wellbeing of the participant arising from the participant’s reliance on the support of family members, carers, informal networks and the community; and
(ii)the suitability of family members, carers, informal networks and the community to provide the supports that the participant requires, including such factors as:
(A)the age and capacity of the participant’s family members and carers, including the extent to which family and community supports are available to sustain them in their caring role; and
(B)the intensity and type of support that is required and whether it is age and gender appropriate for a particular family member or carer to be providing that care; and
(C)the extent of any risks to the long term wellbeing of any of the family members or carers (for example, a child should not be expected to provide care for their parents, siblings or other relatives or be required to limit their educational opportunities); and
(iii)the suitability of family members, carers, informal networks and the community to provide the supports that the participant requires, including such factors as:
(c)for all participants—the desirability of supporting and developing the potential contributions of informal supports and networks within their communities.”

Part 4 of the NDIS-SP Rules is directed to the CEO’s decision whether or not to approve a statement of supports under s 33 of the Act. The CEO is to:
“(a) identify the participant’s goals, aspirations, strengths, capacity, circumstances and context; and
(b)assess activity limitations, participation restrictions and support needs arising from a participant’s disability; and
(c)assess risks and safeguards in relation to the participant; and
(d)relate support needs to the participant’s statement of goals and aspirations.”[28]
[28] NDIS-SP Rules; cl 4.1

Part 5 of the NDIS-SP Rules sets out general criteria for supports and identifies supports that will not be funded or provided. I will refer only to cl 5.1(a) and (b):
“A support will not be provided or funded under the NDIS if:
(a)it is likely to cause harm to the participant or pose a risk to others; or
(b)it is not related to the participant’s disability; …”

The National Disability Insurance Scheme (Plan Management) Rules 2013 (NDIS-PM Rules) are made for the purposes of, among others, s 35. Their objects are to enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports. Among the five principles set out in cl 1.2 are the following relevant to this case:
“(b) 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;
(c)…
(d)people with disability have the same right as other members of Australian society to be able to determine their own best interests, including the right to exercise informed choice and engage as equal partners in decisions that will affect their lives, to the full extent of their capacity;
(e)people with disability should be supported in all their dealings and communications with the Agency so that their capacity to exercise choice and control is maximised in a way that is appropriate to their circumstances and cultural needs;
(f)people with disability should be involved in decision-making processes that affect them, and where possible make decisions for themselves.”

Under s 36(2), the CEO may request further information for the purposes of preparing a statement of participant supports or for deciding whether to approve a statement of participant supports.[29] The request may be made of the participant or of another person.[30] The CEO may ask the participant to do either or both of the following:
“(i) undergo an assessment and provide to the CEO the report, in the approved form, of the person who conducts the assessment;
(ii)undergo, whether or not at a particular place, a medical, psychiatric, psychological or other examination, conducted by an appropriately qualified person, and provide to the CEO the report, in the approved form, of the person who conducts the examination.”[31]
[29] NDIS Act; s 36(1)
[30] NDIS Act; s 36(2)(a)
[31] NDIS Act; s 36(2)(b)

A participant’s plan comes into effect when the CEO has both received the participant’s statement of goals and aspirations from the participant and has approved the statement of supports.[32] A participant’s plan ceases to be in effect at the earlier of two times specified in s 37(3). Those two times are identified by reference to when it is replaced under Division 4 of Part 2 of Chapter 3 of the NDIS Act or when the participant ceases to be a participant. Under Division 4, the plan will be replaced in two situations. One comes about when a participant gives the CEO a changed version of his or her statement of goals and aspirations. He or she may do that at any time. The plan is taken to be replaced by a new plan comprising the changed version of the participant’s statement of goals and aspirations and the statement of participant supports in the existing plan.[33] The Agency must provide a copy of that new plan to the participant.[34] The second situation that will lead to the replacement of a plan arises under s 48 after either the participant has requested the CEO to conduct a review of it, and the CEO has decided to do so, or the CEO has decided to do so on his own initiative.[35] If the CEO conducts a review of a participant’s plan under s 48, he or she must facilitate the preparation of a new plan with the participant in accordance with Division 2 of Part 2 of Chapter 3.[36]
[32] NDIS Act; s 37(1)
[33] NDIS Act; s 47(2)
[34] NDIS Act; s 47(3)
[35] NDIS Act; ss 48(1), (2) and (3) regarding a participant’s request for review and (4) regarding review on the CEO’s initiative.
[36] NDIS Act; s 49

A participant for whom a plan is being prepared (or who has a plan in place) may make a request known as a “plan management request”:
“(a) that he or she manage the funding for supports under the plan wholly or to the extent specified in the request; or
(b)that the funding for supports under the plan be managed wholly, or to the extent specified in the request, by a registered plan management provider he or she nominates; or
(c)that the funding for supports under the plan be managed wholly, or to the extent specified in the request, by a person specified by the Agency.”[37]

Sections 43(2) and (3) provide for the situation in which a person is prevented from managing the funding for supports under the plan wholly or partially for a reason specified in s 44 or in which a person does not make a plan management request. None of the circumstances specified in s 44 applies to Ms Pavilupillai. I note that the plan is managed either by a registered plan management provider specified by the Agency or by the Agency in a case in which a participant does not make a plan management request.[38]

[37] NDIS Act; s 43(1)

[38] NDIS Act; s 43(4). In specifying a registered plan management provider, the CEO must, so far as is reasonably practicable, have regard to the wishes of the participant in specifying who is to manage the funding for supports under the plan: NDIS Act; s 43(5).

Section 45 provides for the payment of NDIS amounts to a participant or to a person who is managing the funding for supports under a participant’s plan. An “NDIS amount’ means an amount paid under the NDIS in respect of reasonable and necessary supports funded under a participant’s plan.[39] NDIS amounts are to be paid at the time or times determined by the CEO and in the manner, if any, prescribed by the National Disability Insurance Scheme rules.[40] A participant who receives an NDIS amount, or a person who receives it on a participant’s behalf, must spend the money in accordance with the participant’s plan.[41]
[39] NDIS Act; s 9
[40] NDIS Act; s 45
[41] NDIS Act; s 46(1)

CONSIDERATION
General principles

In her opening, Ms Taylor of counsel outlined the principles underpinning the NDIS and I will return to them. She also referred to Ms Pavilupillai’s seeking the freedom to make a decision to wear a particular type of footwear. She framed that freedom in terms of the freedom to have the same choice and control that other women, and indeed men, have regarding their footwear. Research showing the risks of wearing high heeled shoes take women with no musculo-skeletal disability as a baseline. Such research cannot be used to shut Ms Pavilupillai out of the freedom of wearing a shoe with a “sensible heel”. That is a freedom that able-bodied people are able to exercise and to do so without giving the issue a second thought.

Framing the opening in this way suggests two things to me. One is that all women and men who are “able-bodied” have a right to exercise freedom to choose the height of the heel that they will wear. The second is that the decision in this case should be reviewed against a background that there is such a right. The first suggestion causes me concern for there is no reference point to determine who are “able-bodied”. If it is a reference to those people who do not meet the disability requirements in s 24 of the NDIS Act, there may well be people who have impairments to, for example, their feet and who, as a consequence, cannot wear high-heeled shoes of any height but who would not meet those disability requirements. Their impairment may not, for example, affect their capacity for social or economic participation. That is a requirement of s 24(1)(d). As the five criteria set out in s 24(1) are cumulative, such people would not become participants in the NDIS but would, by reason of their impairment, not have freedom to choose to wear any shoe other than a flat-heeled shoe.
The second suggestion I have taken from the opening remarks relates to rights. If a person has a right, another must have a duty corresponding to that right. In the case of the NDIS, if a participant has a right, the Agency has a duty that corresponds with the right so that the right is fulfilled by providing a support. Although we commonly assert that we have a right to something or other, I will only be able to find that Ms Pavilupillai has a right of one sort or another if I find it in the NDIS Act. I will explain why I have come to that view.

I will begin with Australia’s obligations under the United Nations Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006[42] (CRPD), as well as to the five conventions identified in s 3(1)(i) of the NDIS Act. I have set them out at [27] above. Australia has ratified all of the conventions on various dates. The status of international conventions to which Australia is a party was considered by Mason CJ and Deane J in Minister for Immigration and Ethnic Affairs v Teoh[43] (Teoh):
“ It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute … This principle has its foundation in the proposition that in our constitutional system the making and ratification of treaties fall within the province of the Executive in the exercise of its prerogative power whereas the making and the alteration of the law fall within the province of Parliament, not the Executive … So, a treaty which has not been incorporated into our municipal law cannot operate as a direct source of individual rights and obligations under that law. …”[44]
[42] [2008] ATS 12
[43] [1995] HCA 20; (1995) 183 CLR 273; 128 ALR 353
[44] [1995] HCA 20; (1995) 183 CLR 273; 128 ALR 353 at [25]; 287; 362 (citations omitted)

Section 3(1)(a) states that an object of the NDIS Act is, in conjunction with other laws, to give effect to Australia’s obligations under the CRPD. The statement of the object makes clear that it is not an object of the NDIS Act to give effect to each and every one of Australia’s obligations under the CRPD for account must be taken of other laws. Parliament is giving effect to Australia’s obligations in the NDIS Act but “in conjunction with other laws”. Account must also be taken of other laws when the five conventions identified in s 3(1)(i) are considered. Even then, s 3 does not state that it is an object to give effect to all obligations that Australia has under those conventions. It is only an object to give effect to “certain” of those obligations.

This means that, even when Australia has ratified an international treaty, rights and duties provided for in an international convention are not conferred or imposed, as the case might be, on a person under Australian law and obligations unless those rights and duties have been incorporated into Australian domestic law. That is not to say that those obligations that have been imposed by international conventions that Australia has ratified but has not incorporated in Australian domestic law are of no significance. Their significance was considered by Mason CJ and Deane J in Teoh:
“… Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia’s obligations under a treaty or international convention to which Australia is a party ..., at least in those cases in which the legislation is enacted after, or in contemplation of, entry into, or ratification of, the relevant international instrument. That is because Parliament, prima facie, intends to give effect to Australia’s obligations under international law.
It is accepted that a statute is to be interpreted and applied, as far as its language permits, so that it is in conformity and not in conflict with the established rules of international law .... The form in which this principle has been expressed might be thought to lend support to the view that the proposition enunciated in the preceding paragraph should be stated so as to require the courts to favour a construction, as far as the language of the legislation permits, that is in conformity and not in conflict with Australia's international obligations. That indeed is how we would regard the proposition as stated in the preceding paragraph. In this context, there are strong reasons for rejecting a narrow conception of ambiguity. If the language of the legislation is susceptible of a construction which is consistent with the terms of the international instrument and the obligations which it imposes on Australia, then that construction should prevail. So expressed, the principle is no more than a canon of construction and does not import the terms of the treaty or convention into our municipal law as a source of individual rights and obligations ....
Apart from influencing the construction of a statute or subordinate legislation, an international convention may play a part in the development by the courts of the common law. The provisions of an international convention to which Australia is a party, especially one which declares universal fundamental rights, may be used by the courts as a legitimate guide in developing the common law .... But the courts should act in this fashion with due circumspection when the Parliament itself has not seen fit to incorporate the provisions of a convention into our domestic law. Judicial development of the common law must not be seen as a backdoor means of importing an unincorporated convention into Australian law. A cautious approach to the development of the common law by reference to international conventions would be consistent with the approach which the courts have hitherto adopted to the development of the common law by reference to statutory policy and statutory materials .... Much will depend upon the nature of the relevant provision, the extent to which it has been accepted by the international community, the purpose which it is intended to serve and its relationship to the existing principles of our domestic law.”[45]
[45] [1995] HCA 20; (1995) 183 CLR 273; 128 ALR 353 at [26]- [28]; 287-288 362-363

These principles are equally applicable in the interpretation of the NDIS Act. Section 3(3) provides that, in giving effect to the objects of the NDIS Act, regard is to be had to, among other matters, the broad context of disability reform provided for in the National Disability Strategy 2010-2020 (Strategy).[46] That Strategy states that it:
“… will help ensure that the principles underpinning the CRPD are incorporated into policies and programs affecting people with disability, their families and carers.
The CRPD is unique in that it is both a human rights instrument and a development instrument which aims to redress the social disadvantage of people with disability. It is also a policy instrument which is cross-sectoral and cross-disability, and requires the development of a framework to promote and monitor implementation.”[47]
[46] NDIS Act; s 3(3)(c)(i)
[47] Strategy at 16

The Strategy specifically adopts the principles set out in Article 3 of the CRPD. They are:
“· respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons
·non-discrimination
·full and effective participation and inclusion in society
·respect for difference and acceptance of persons with disabilities as part of human diversity and humanity
·equality of opportunity
·accessibility
·equality between men and women
·respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.”[48]
[48] Strategy at 22

Six policy areas dealt with in the Strategy are aligned to articles of the CRPD.[49] They are: inclusive and accessible communities; rights protection, justice and legislation; economic security; personal and community support; learning and skills; and health and wellbeing. Under the policy area concerned with personal and community support – Policy Area 4 – there are four Policy Directions identified. Part of Policy Direction 1 reads:
“There is growing support in Australia and internationally for a move towards more individualised and self-managed funding approaches with a full range of choices within the service system. … An individualised approach provides greater choice and flexibility for people with disability, their families and carers.”[50]
[49] Strategy at 17
[50] Strategy at 48

The Strategy does not address the funding of the NDIS. Section 3(3)(b), however, requires that, in giving effects to the objects of the NDIS Act, regard is to be had to the need to ensure the financial sustainability of the NDIS. The form or manner in which that regard is to be had is not stated in the NDIS Act and no reference is made to it in the Strategy. Some reference is made to it in the Explanatory Memorandum to the National Disability Insurance Scheme Bill 2013 as introduced in the House of Representatives when it was said:
“In August 2011, the Prime Minister released the Productivity Commission Inquiry Report, Disability Care and Support, which identified that disability care and support in Australia was `underfunded, unfair, fragmented and inefficient', and that major reform was needed.
Since the release of this report, the Commonwealth and all state and territory governments have agreed on the need for major reform in the form of a National Disability Insurance Scheme, which:
·will take an insurance approach that shares the costs of disability services and supports across the community;
·will fund reasonable and necessary services and supports directly related to an eligible person's individual ongoing disability support needs; and
·will enable people with disability to exercise more choice and control in their lives, through a person-centred, self-directed approach, with individualised funding.”

What is clear from the NDIS Act is that the need to ensure the financial sustainability of the NDIS has no place in determining the NDIS amount payable to a participant once a decision has been made regarding those supports that are regarded as the reasonable and necessary supports for that participant. It is clear from the fact that an “NDIS amount” is defined in s 9 as the amounts paid “in respect of reasonable and necessary supports funded under a participant’s plan” (emphasis added). No provision is made in the NDIS Act for discounting that amount by reference to matters such as a participant’s assets and income or the amount available to the Agency to pay those amounts once the CEO has specified “the reasonable and necessary supports (if any) that will be funded under the …” NDIS.[51] In making his statement specifying any reasonable and necessary supports, the CEO will have had regard to the matters set out in ss 33(5) and 34(2). I will return to them shortly but, as Mortimer J said in McGarrigle v National Disability Insurance Agency[52] (McGarrigle):
“ Once a decision is made that the support, as identified and described, is reasonable and necessary, then subject to the other requirements in ss 33(5) and s 34, the scheme requires and contemplates that support ‘will’ be funded. In my opinion, that can only mean wholly or fully funded.
The subject matter of the CEO’s approval in s 33(2)(b) is the reasonable and necessary supports that ‘will’ be funded. The language is imperative, and in my opinion this is consistent with the applicant’s contention that the relevant gateway established by the legislative scheme is whether the support is ‘reasonable and necessary’, and once through that gateway, the scheme intends the support will be fully funded. There are no references in these provisions to ‘contributions’ from the participant, the participants’ family or carers. … Parliament did not intend the decision-maker to ask, in forming a state of satisfaction, whether the community could or should make a financial contribution to the funding of a support found by the decision-maker to be reasonable and necessary in order for the participant to work towards the goals, objectives and aspirations set out in the participant’s plan.”[53]
[51] NDIS Act; s 33(2) (emphasis added)
[52] [2017 FCA 308; (2017) 252 FCR 121; appeal dismissed National Disability Insurance Agency v McGarrigle [2017] FCAFC 132; Kenny, Robertson and Kerr JJ
[53] [2017 FCA 308; (2017) 252 FCR 121 at [95]; 142

This paragraph was at the centre of the appeal to the Full Court of the Federal Court, which observed:
“… The parties’ competing contentions centred on paragraph [95] of the reasons for judgment of the primary judge: see McGarrigle v National Disability Insurance Agency [2017] FCA 308. In particular, the parties’ arguments raised the question whether in that paragraph her Honour should be taken to have said that in every case where a support was reasonable and necessary, it must be fully funded.
3 We do not read her Honour as establishing a two stage process to determine whether objectively a support was reasonable and necessary and secondly and consequentially that it must be fully funded. Rather, we consider that her Honour was addressing the particular way in which the argument was formulated before her. This was not, however, an argument supported by either party on this appeal. We do not consider that her Honour was departing from the statutory language in s 33(2)(b) of the National Disability Insurance Scheme Act 2013 (Cth) (the Act) that a ‘participant’s plan must include a statement... approved by the CEO’ specifying ‘the reasonable and necessary supports ... that will be funded under the National Disability Insurance Scheme’. The same or similar expressions appear elsewhere in Div 2 of Pt 2 of the Act: see for example ss 34 and 35 of the Act.”[54]
[54] [2017] FCAFC 132 at [2]-[3]

I do not think that the reasoning in McGarrigle by either appellate court reflects on what would seem to be the Agency’s duty to prepare a statement of participant supports with the participant and with the CEO’s approval specifying the matters set out in s 33(2). The statement of participant supports must specify any “reasonable and necessary supports that will be funded under the …” NDIS as required by s 33(2)(b). In deciding whether to approve a statement of participant supports, the CEO must, among other matters, be satisfied as mentioned in s 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided. That is required by s 33(5)(c).

Funding becomes relevant under s 34(1)(e).[55] Although the parties agree that it is not relevant in this case, I will briefly set out why I agree with them. The CEO must be satisfied in relation to each of the general supports that will be provided and each of the reasonable and necessary supports that will be funded that 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. In this context, I do not think that the word “community” should be read as a reference to the taxpaying community so that s 34(1)(e) then requires account to be taken of what is reasonable to expect the taxpaying community to pay. The reference to “community” is a reference to the community recognised in the Strategy as a necessary element in removing barriers and supporting the inclusion of those with disability in the life of their communities.[56] Policy Direction 3 in Principle 4 refers to the need for personal and community services to be available to people in the community including people with a disability. Community services of that sort are referred to in cl 3.4(c) of the NDIS-SP Rules. I have set them out at [39] above.[57]
[55] Section 34(1)(f) is not relevant because, if the high heel foot sections are to be funded, they are to be funded under the NDIS. That follows from the fat that their provision would not be offered as part of a universal service obligation or in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
[56] Strategy at [23] Section 3(3)(c)(i) requires regard to be had to giving effect to the objects of the NDIS
[57] As a general rule, the provisions made in regulations cannot be used to glean Parliament’s intention in enacting the Act to be interpreted (Webster v McIntosh (1980) 32 ALR 603 at 606 per Brennan J, with whom Deane and Kelly JJ agreed). There are, however, exceptions to that general rule. One occurs when regard must be had to both an Act and the delegated legislation made under it in order to ascertain the nature of a scheme. The other is perhaps a variation on the theme of the first. That occurs where an Act and the delegated legislation are prepared contemporaneously and establish an interdependent regime (Pearce and Geddes, Statutory Interpretation in Australia, 8^th edition, 2014, paragraph 3.41 and cases referred to therein). Both the NDIS Act, on the one hand, and the NDIS-SP Rules and the NDIS-PM Rules commenced on 1 July 2013. The NDIS-SP Rules are expressly provided for in ss 33(7) and 34(2) and the NDIS-PM Rules in s 35(1). Both are provided for more generally in s 209(1). They may prescribe methods or criteria on specified matters and to which the CEO is required to have regard and, in the case of s 33(7), may prescribe additional matters to be included in a participant’s plan. The NDIS Act clearly contemplates that it and the various rules made under it, including the NDIS-SP Rules, establish an interdependent scheme that is the NDIS. For that reason, I may have regard to them in interpreting the NDIS Act.

The Agency did not make any submissions regarding sustainability. Although I am mindful that s 4(17)(b) provides that, in exercising my review powers, I must have regard to the need to ensure the financial viability of the NDIS, sustainability does not become an issue in this case.

Are the criteria specified in sections 34(1)(a) to (d) satisfied?
A. Section 34(1)(a): goals

Starting with s 34(1)(a), I note that Ms Pavilupillai’s first goal was to have new splints to enable her to move around. In making submissions on her behalf, Ms Taylor would have me read into Ms Pavilupillai’s stated goal a goal of having “… new splints to enable … [her] to move around” in a way that would enhance her enjoyment in moving around. On behalf of the Agency, Mr Lay submitted that Ms Pavilupillai made no mention of wanting to move around in high heeled shoes. Her stated goal should be read in the terms in which it is written. High heel foot sections would be in addition to the KAFOs, which have already been approved as reasonable and necessary supports and which enable her to be mobile and active and to undertake all activities of daily living.

Both Ms Taylor and Mr Lay addressed Ms Pavilupillai’s wanting to move while wearing high heeled shoes and I will come to that in the context of s 34(1)(b) and (d). For the moment, I agree with Ms Taylor that the statement of her goals should not be read literally. The fact that Ms Pavilupillai has not expressly mentioned her goal of wearing high-heeled shoes in stating her First Goal should not mean that I cannot have regard to particular ways in which she wants new splints to enable her to move around. In the past, the statement of her First Goal was not read by the Agency as limiting her to a particular form of “moving around” or to a particular environment in which she would like to move. I refer to the delegate’s decision to approve the manufacture and supply of two sets of KAFOs for Ms Pavilupillai with one for general wear and the other in a waterproof form for use at, for example, the pool or beach.[58]
[58] Letter from Agency to Ms Pavilupillai dated 29 March 2017: T documents; T9 at 41-42

I find that both sets of KAFO’s that have been approved confine Ms Pavilupillai to wearing flat shoes in whatever environment she is in be it while exercising, working, socialising or carrying out the activities of daily living. Her goal is stated broadly enough to be read as a goal to move in some of those environments on some occasions while wearing high heeled shoes. Therefore, I find that high heel foot sections would assist her to pursue her goal.

B. Section 34(1)(b): facilitation of social and economic participation

Both parties agreed, and I find, that Ms Pavilupillai is, with her current KAFOs, capable of engaging in the activities of daily living, socialising with friends and family and working to support herself. The issue, as Ms Taylor states it on behalf of Ms Pavilupillai, relates to full enjoyment of, and participation in, the social benefits of having the freedom to dress as she pleases. It is not just about mobility but about social participation, discrimination and equal opportunity. The Strategy is replete with references to basic human rights including education, employment, healthcare and participation in cultural and public life as well as rights to privacy and intimate life.[59]
[59] Applicant’s Closing Submissions at [5.5]-[5.6]

Ms Taylor referred to the principles set out in the CRPD and adopted by the Strategy. I have set them out at [54] above. She also submitted that:
“5.8 The National Disability Strategy also commits to ..:
·a person-centred approach – where policies, programs and services are designed to respond to the needs and wishes of each individual.
·Independent living – the provisions of services and equipment that facilitates the greatest level of independence and the enjoyment of a lifestyle that reflects the choices of the individual person with a disability.
·A life course approach – taking into account a person’s likely needs and aspirations over their lifetime, paying particular attention to milestones and times of transition.
5.9These are just three of the principles underpinning the National Disability Strategy. The applicant submits that the respondent is taking an unjustifiably narrow interpretation of the terms “economic and social participation”, failing to take into account ‘the wishes of the individual’, ‘enjoyment of a lifestyle’, ‘the choices of the individual person with a disability’, and ‘a person’s likely needs and aspirations over their lifetime’.
5.10Further, the respondent’s approach fails to take into consideration the principles set out at Article 3 of the CRPD, most relevantly respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons; non-discrimination, full and effective participation and inclusion in society and equality of opportunity.”

I have referred to the place that international conventions have in Australian law. In brief, to the extent that they have been incorporated in Australian domestic law, rights and privileges will be conferred on some, and duties and obligations corresponding to those rights and privileges will be imposed on others. Even when they have not been expressly incorporated into Australian law but the language of that law is, to use the words of Mason CJ and Deane J in Teoh, “… susceptible of a construction which is consistent with the terms of the international instrument and the obligations which it imposes on Australia, then that construction should prevail. …”.[60] That is a matter of statutory construction and, as their Honours said, “… does not import the terms of the treaty or convention into our municipal law as a source of individual rights and obligations ....”.[61]
[60] See [52] above
[61] See [52] above

It follows that, before it can be said that a person has rights arising from an international convention, it is imperative to identify what it is that Australian domestic law has implemented. The Strategy adopts the principles in Article 3 of the CRPD but that does not mean that those principles become part of Australian domestic law. The object of the NDIS Act is to give effect to Australia’s obligations under the CRPD but it is by that legislation, when construed in accordance with the principles in Teoh, that a person’s rights must be determined. Section 3(3)(c)(i) of the NDIS Act states that, in giving effect to the objects of the Act, regard is to be had to, amongst other matters, “the broad context of disability reform provided for in … the … Strategy …”. Section 3(3)(c)(i) does not incorporate the Strategy into the NDIS Act so that it confers rights. What it states is that, in giving effect to the objects of the legislation, “regard is to be had to” the “broad context of disability reform” provided for in the Strategy. The Strategy provides a context of disability reform, to which regard must be had in giving effect to the objects of the NDIS Act. It does not confer rights. The fact that it does not do so and that it provides context, approaches and directions is reinforced when regard is had to the whole of the passage from which Ms Taylor has drawn three approaches in [5.8] of her written submissions.[62] Immediately following the statement of principles drawn from Article 3 of the CRPD, the Strategy states:
[62] See [52] and [66] above
“These principles align well with Australian public policies of inclusion and non-discrimination.
The policies and practices developed by governments under the Strategy, including in mainstream areas, will reflect and reinforce the following approaches:
Involvement of people with disability – the views of people with disability are central to the design, funding, delivery and evaluation of policies, programs and services which impact on them, with appropriate support and adjustment for participation.
Community engagement – a whole-of-community change effort is required to remove barriers and support inclusion of people with disability in the life of their communities.
Universal approach – products, services, environments and communities are accessible and usable by all people to the greatest extent possible without the need for specialised modification.
Life course approach – takes into account a person’s likely needs and aspirations over their lifetime, paying particular attention to milestones and times of transition.
Person-centred – policies, programs and services for people with disability are designed to respond to the needs and wishes of each individual.
Independent living – the provision of services and equipment that facilitate the greatest level of independence and the enjoyment of a lifestyle that reflects the choices of people with disability.
Interconnectivity – governments work together to ensure interconnectivity of policies and programs.”[63]
[63] Strategy at 23

When seen in their context, I respectfully suggest that this passage from the Strategy is directed to the approaches that must be reinforced in the policies and practices developed by the Commonwealth, State and Territory and local governments. This is the background to the development of the NDIS and, by virtue of s 3(3)(c)(i) of the NDIS Act, part of the broad context of disability reform to which regard must be had in giving effect to the objects of that legislation. It is too big a step, however, to go from that position to read into s 34(1)(b) a requirement that its words must incorporate the words of the principles drawn from Art 3 of the CRPD and those of the approaches in the Strategy. That is what [5.9] and [5.10] of the submissions made on behalf of Ms Pavilupillai would have me do. To do that would, however, be contrary to the principles set out in Teoh and to the principles of statutory construction.

Principles of the sort set out in the Strategy are set out in s 4 of the NDIS Act. They are said to “guide action” taken under the NDIS Act. In so far as they address reasonable and necessary supports, the principles do not lead me to conclude that I can read into s 34(1)(b) any requirement that the words “economic and social participation” should necessarily be read as taking into account the wishes of the individual, his or her enjoyment of lifestyle, choices of the individual with a disability and the individual’s likely needs and aspirations over their lifetime as well as the individual’s freedom to make choices for him or herself. Section 34(1)(b) is focused on activities that facilitate a participant’s social and economic participation. Section 4(11) of the NDIS Act sets out what reasonable and necessary supports should provide for people with disabilities. They should support them to pursue their goals and to maximise their independence, to support independent living and inclusion in the community as full participating citizens and to develop and support them to undertake activities enabling them to participate in the community and in employment. That leads me to think that activities that will assist a participant to undertake activities so as to facilitate his or her social and economic participation should be considered in light of the terms of s 4(11) and not in terms advocated for by Ms Taylor.

Section 34(1)(b) is about a support that will assist a participant to undertake activities that have a certain outcome. That outcome is the facilitation of the participant’s social and economic participation. The word “facilitation” means “… to make something easy or easier to do or achieve …”[64] The nature of the activities that may facilitate that participation will depend on the participant’s particular circumstances. What may be regarded as social or economic participation will be similarly dependent on particular circumstances. The word “social” connotes activities that brings a person together with others in the community and as part of the community. They may be activities that are regarded as those interactions with other people that are directed to maintaining health or domestic arrangements and extend through to the myriad of activities, be they sporting or recreational, organised or not organised and so on, in which a person may engage as a member of the community. The reference to economic participation might be thought to be limited to activities that facilitate a person’s employment. That is the word used in s 4(11)(c) but the use of the word “economic” in s 34(1)(b) would suggest that the activities to facilitate a participant’s economic participation might extend beyond employment to other activities that might be directed to the generation of an income be it in, for example, business or industry. That is not a matter that it is relevant to decide in this case.
[64] Chambers 21st Century Dictionary (1999, reprinted 2004) (Chambers)

On the evidence, I find that Ms Pavilupillai has achieved much in her life. She has completed tertiary education and holds a position of responsibility in the ATO. She lives independently and has a boarder or house sharer. Wearing her KAFOs and with the aid of a walking stick, Ms Pavilupillai can move about the workplace and her home. She can, and does, engage in an active social life with family and friends. With the assistance of a crutch, she is able to walk for 200 metres at a time. Ms Pavilupillai is also able to use her scooter to travel. She is able to use trains for commuting but must rely on family and friends to help her to commute if trains are not available.

On the evidence, I find that there is no social or economic activity in which Ms Pavilupillai could undertake with high heel foot sections that is an activity in which she does not presently engage in with her current KAFOs that enable her to walk while wearing a flat heeled shoe. I accept Mr Lay’s submission that there are activities in which she could not engage with high heel foot sections. They include her walking on the treadmill and participating in Pilates. To be fair to her, Ms Pavilupillai accepts that she could not use high heel foot sections for such activities and also accepts that she could not wear them for extended periods. What she says is that her being able to wear high heeled shoes on occasion would enhance her enjoyment of the activities in which she is able to engage. She will have choices as to what she can wear. At the hearing, Ms Pavilupillai read a statement, which read in part:
“I contend it is an accepted fact that high heels enhance and improve a woman’s self-esteem. High self-esteem is at the core of leading a happy and successful and content life. Enhancing one’s self-esteem should be one of the primary purposes of the NDIA. It is feasible for the NDIA to make decisions that will work towards attaining equality for women with disability, and not discriminate against them by denying them the right and choice to wear what makes them happy.”[65]
[65] Transcript at 75

Mr Pereira referred in his report to an article entitled “The 2016 High Heels: Health effects and psychosexual benefits (High Habits) study: systematic review of reviews and additional primary studies”[66] (High Habits article). It was written after its authors had searched for review articles that assessed either the psychosexual benefits or negative musculoskeletal health effects of high heels whether from the biomechanical or epidemiological perspective as well as primary studies on areas that had not been reviewed. The conclusion that the authors express in the Abstract, and which Mr Pereira quoted, is that:
“Our evidence synthesis clearly shows that high heels bring psychosexual benefits to women but are detrimental to their health. In light of this dilemma, it is important that women’s freedom of choice is respected and that any remaining issues of explicit or implicit compulsion are addressed.”
[66] (2018) 18 BMC Public Health 3; Max Banish, Heather May Morgan and Jean Barnish; Exhibit B

It is important to read the whole of the article to understand the conclusion expressed in the Abstract. When the authors refer to the importance of respecting women’s freedom of choice, the body of the article shows that they are referring to the importance of respecting women’s freedom of choice to wear what they wish and, particularly, the freedom not to wear high heeled shoes if they wish. The authors summarised their findings with regard to the biomechanical and epidemiological perspectives and offered:
“… the first review of the psychosexual literature, which provides essential context in which to situate the findings on negative health effects, and understand the public health issues and dilemmas they pose for society. The biomechanical literature is now clear that wearing high heels causes substantial kinetic and kinematic alterations in the MSK system, ranging from the spine to the toes. These alterations increase the risk of MSK conditions such as OA [osteoarthritis], HV [hallux vulgas[67]] and MSK [musculoskeletal] pain as well as first-party injury. The epidemiological literature also now clearly says that wearing high heels is associated with increased risk of HV, MSK pain and first-party injury, although the risk of first-party injury requiring emergency department attention is at most moderate. However, there is still no clear epidemiological evidence of an association between high heel wear and OA. …”[68]
[67] Commonly known as a bunion.
[68] Exhibit B at 10. High heels, and particularly stilettos, can cause second-party injuries requiring emergency department attention but the authors could not quantify the magnitude of the risk on the material they had. I mention this to clarify what is meant by “first-party” injury in the quotation. There is no suggestion that Ms Pavilupillai wishes to wear stilettos or heels of any height other than a modest height. The risk to other persons is, in any event, of no relevance in this case.

The authors elaborated on the social context that they had identified in their literature review:
“High heels are a challenging topic due to the tension between health and psychosexual considerations. The evidence synthesised in our review shows that wearing high heels increases women’s attractiveness to men and can reward female wearers with other psychosexual benefits in terms of male attention and their own view of their beauty. This poses a potential opportunity or dilemma, which many women face regardless of their sexuality. We hope our review can provide a useful resource for clinicians such as podiatrists and MSK specialists in discussing in gender sensitive ways high heel related conditions and injuries with which their clients present. It is important that women’s footwear choices are respected and that they are not pressurised into wearing high heels against their will. Unstated social expectation and pressure, mediated by social compliance … and celebrity influence … is clearly a complex challenge that is difficult to confront. Continuing to raise awareness of the health issues associated with high heels appears to be the most useful solution to seeking to maximise freedom of choice. Important policy developments have occurred recently in different localities …, although challenges remain regarding compliance with legislation and also compulsion that occurs beyond the workplace, which may be covered by equality legislation that refers to the provision of goods and services.”[69]
[69] Exhibit B at 11 (citations omitted) The policy developments mentioned in this passage refer to various approaches taken by governments in addressing requirements by employers that their female staff wear high heeled shoes to work. In the United Kingdom, the government worked towards the development of guidelines to raise the issue and to ensure that women were not discriminated against in the workplace. In Canada, the province of British Columbia passed legislation prohibiting employers from requiring their female staff to wear high heeled shoes. Exhibit B at 2

The research undertaken by the authors of the High Habits article shows that Ms Pavilupillai’s view of the effect of wearing on her well-being, her view of herself and her attractiveness to men is consistent with that held by many other women. It is apparent from a passage earlier in the article that, although high heeled shoes are regularly worn by a considerable proportion of women, for a number of women, their wearing high heeled shoes is a consequence of their cultural context and not of choice. That cultural context includes fashion, which capitalises on concepts of social compliance and conformity, potentially mediated through celebrity influence and the expectation to perform normalised gender roles.[70] The authors of High Habits said that:
“One online opinion poll estimates that the proportion of women whose high heel wear is mainly due to social expectation rather than their own free choice may be around a third …. This would represent a substantial minority, and is around the same as the proportion this poll reports have ever been required to wear high heels at work.”[71]
[70] Exhibit B at 2
[71] Exhibit B at 2

High Habits does address the issue of high heeled shoes in the workplace. It is apparent that, in some workplaces, employers require high heeled shoes to be worn by their female staff. The ATO is not such an employer and Ms Pavilupillai has not given any evidence that she has been refused employment by reason of not wearing high-heeled shoes. Therefore, I find that high heel foot sections would not assist Ms Pavilupillai to undertake activities so as to facilitate her economic participation.

That leaves the issue of whether high heeled shoes would facilitate her social participation. Even though I have no doubt that Ms Pavilupillai’s view of the benefit of high heeled shoes is shared by many in the community be they those who wear them and those who view them, I do not accept that they will facilitate her social participation. They will not make her ability to participate in social activities any easier than it is now. She already has an active social life and there is no suggestion that she intends to be more or less engaged in it either with or without high heel foot sections. I accept that Ms Pavilupillai believes that she is more attractive to others if she is wearing high heeled shoes, and High Habits shows that she would share that thought with many other women, but on the evidence that I have, I find that her doing so would not facilitate her taking part in, or being involved in,[72] and so participation in social activities. I accept that she may feel happier within herself but it will not alter her social participation. Therefore, I am not satisfied that s 34(1)(b) has been satisfied.
[72] Chambers

C. Section 34(1)(c): value for money

In considering s 34(1)(c), I must also have regard to cl 3.1 of the NDIS-SP Rules because, for the reasons I have given at FN 57 above, they form part of the same statutory regime. Taking first alternative supports, there is no evidence that there is any alternative to the high heel foot supports. That is to say, there is no evidence that she could wear high heeled shoes with any other form of support be it her existing KAFOs or another form of support. It is not a case in which funding high heel foot sections at this time would reduce the cost of funding of supports for Ms Pavilupillai in the long term. I am not satisfied that they will increase her independence and reduce her need for other kinds of supports. They are in addition to the supports that she already receives and which enable her to live independently, to work and to socialise.

The cost of manufacturing the left and right high heel foot sections as well as the Anchor Kit for each of the left and right high heel foot section totals $2,450 for the former and $728 for the latter. That is a total of $3,178. Adding an administration fee of 13% would bring the total cost to $3,591.14.[73] In the overall package, the cost of the high heel foot sections is modest.
[73] Quotation summarised in request for delegate’s decision dated 30 January 2017. Including the high heel foot sections, the total cost of general wear and waterproof KAFOs was $22,769. Adding the 13% administration fee, the total was $25,728.97.

The benefits that high heel foot sections would bring to Ms Pavilupillai are intangible. They take the form of enhancement to her sense of self and her self-esteem, at least in the short term. I say “in the short term” for it is impossible to say at this stage whether the benefits that Ms Pavilupillai perceives that she will gain by wearing high heeled shoes will come to her when she experiences the reality of wearing high heeled shoes or, if she does gain them, whether they will persist into the longer term. The only benefit that Ms Pavilupillai can be assured of would be the knowledge, one way or the other, of whether wearing high heeled shoes would bring her the feelings of self-esteem that she thinks they will. I accept that they are said to have brought those feelings for another young woman, whom I will call Ms T, who funded her own high heel foot sections so that she could wear high heeled shoes at her wedding and subsequently. As is apparent from High Habits, however, every woman’s experience is different and what has been the outcome for another may not be the outcome for Ms Pavilupillai.

The provision of high heel foot sections, I find, would not reduce the cost of funding supports for Ms Pavilupillai in the long term. They would continue to be an additional cost if they were provided in the first instance and were found to be reasonable and necessary supports after her experience with them.

Having regard to all of these matters, I do not consider that the provision of high heel foot sections would be value for money within the meaning of s 34(1)(c). Their cost may be reasonable when viewed in the context of the overall cost of the provision of two types of KAFOs but both their short and long-term benefits are uncertain even though I accept without reservation that Ms Pavilupillai believes that their benefit will be immense.

D. Section 34(1)(d): effective and beneficial for the participant

Ms Taylor and Mr Lay agree that the Agency supports innovative and cutting edge supports through the NDIS. Where they disagree centres on whether high heel foot sections would be effective and beneficial for Ms Pavilupillai having regard to current good practice.

I accept the evidence of Mr Pereira that the high heel foot sections and the necessary anchor kits represent the latest technology. They are widely used and found to be beneficial by those who use them. I also accept that they have been found to be effective by those who use them. By “effective”, I mean that high heel foot sections have enabled the person to wear high heeled shoes. For what period they have done so, I am unable to determine on the evidence but it is not relevant.

What I must consider is whether they are effective and beneficial for Ms Pavilupillai. She is a person who, should she break a bone, would spend many months in a rehabilitation facility. I make this finding on the basis of Mr Pereira’s evidence. The following extract from the exchange between him and Mr Lay reflects it:
“Yes, okay?‑‑‑Yes, because for Sabothany, for one thing, as a healthcare service, we don’t want Sabothany to fall, we don’t want her to fracture, because the cost – if Sabothany was to fall or fracture, the cost of her attending a rehab facility would be 10 times the cost of her orthoses, because as a neurological client, her ability to recover after a fracture will be very slow.
Sure?‑‑‑She’ll be in a rehab facility for months, really. So, we review clients quarterly who have so much complexity because of the safety aspect of those knee joints keeping her upright.”[74]
[74] Transcript at 49

Falling is one thing but Ms Pavilupillai may never fall as a result of wearing high heel foot sections or, if she were to, might not break a bone. There is, however, always a greater risk that she will do so when she is wearing high heeled shoes than when she is wearing flat shoes. That is so because of the inherent nature of high heels regardless of the person who wears them. This is apparent in the answer given by Mr Pereira to Mr Lay in cross-examination:
“So, her foot and ankle would never catch the ground when she walked. She would never have knee instability when she walked. The only reason she would fall is, again, if she stood on something on the heel, lost her balance, or something around those things. So, unpredictable stuff. But from a mechanical perspective, she is fitted with the most advanced stuff that keeps her as safe and functional as possible.”[75]
[75] Transcript at 46

There are other risks of wearing high heeled shoes. They relate to issues such as hallux valgus and, of more importance in Ms Pavilupillai’s case, ongoing musculoskeletal issues. She already suffers from back pain although I accept that she manages that pain with the assistance of Pilates, maintenance of her general fitness and walking from her desk each hour when she is at work. The musculoskeletal issues were set out in High Habits and I have set out a relevant extract at [76] above. It is clear from that article that, from a medical point of view, current good practice is to wear flat shoes. Current good practice does not accord with the wishes of a number women. Ms Pavilupillai is confident that she would avoid back pain by listening to her body and by refraining from wearing high heeled shoes for a longer period than she should.

Mr Pereira presented as an advocate rather than as an expert. Understandably, he wants Ms Pavilupillai to have the same choice and control that is afforded to amputees and to women who do not have a disability to choose whether to wear a flat shoe or a shoe with a heel. He has focused on her wish to have choice and control over what she wears and did not prepare his report in light of the matters to which regard must be had under s 34(1). I am particularly mindful of that in considering the matter under s 34(1)(d). I must have regard to whether the support will be, or is likely to be, “effective and beneficial” for Ms Pavilupillai herself having regard to good practice and not simply effective and beneficial for others, including Ms T. As Mr Pereira agreed, there was no comparison to be made between Ms T and Ms Pavilupillai because, although both had suffered polio, Ms Pavilupillai had been significantly more affected by it than Ms T. Ms T, for example, wore a KAFO on one of her legs only, did not require a crutch to walk although she might use a parasol as a walking stick in some instances, and had not lost strength in her upper body as had Ms Pavilupillai.

What is “beneficial” is that which has “… good results or benefits; advantageous. …”[76] for a person. It can be measured with reference to a person’s dreams and aspirations but must also be measured with reference to the practical outcomes of realising those dreams and aspirations. In this instance, the evidence that I have in High Habits satisfies me that the current good practice for every woman is to wear flat shoes. I accept that is not the reality for a significant proportion of woman but my acknowledging that fact does not detract from my finding that wearing flat shoes is current good practice. That is not necessarily determinative of matters under s 34(1)(d) for I need only have regard to current good practice. Having regard to that practice, however, and to Ms Pavilupillai’s ongoing musculoskeletal issues and the nature of the consequences should she fall, I am not satisfied that she meets the criterion in s 34(1)(d).
[76] Chambers

DECISION

This case is concerned only with those supports that are reasonable and necessary supports. Section 34(1) provides that the CEO must be satisfied of all of the matters set out in ss 34(1)(a) to (f) in relation to the funding or provision of each support before specifying that it is a reasonable and necessary support that will be funded. For the reasons I have given, I am not satisfied that high heel foot sections satisfy ss 34(1)(b), (c) or (d). Therefore, although I am satisfied that they meet s 34(1)(a) and it is agreed between the parties that they meet ss 34(1)(e) and (f), I am not satisfied that high heel foot sections are reasonable and necessary supports that will be funded under the NDIS. I affirm the decision under review.

I certify that the preceding ninety two (92) paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie

[sgd]........................................................................
Associate
Dated: 13 December 2018

Heard:

2 August 2018

Counsel for the Applicant:

Solicitor for the Applicant:

Solicitor-advocate for the Respondent:

Ms Jessie Taylor

Ms Rosalinda Casamento
Victoria Legal Aid

Mr Dominic Lay,
Wisewould Mahony Lawyers

Solicitor for the Respondent:

Ms Rachel Patterson
National Disability Insurance Agency

“14. Whenever it appears to the Director-General that sufficient reason exists for reviewing a determination, direction, decision or approval of an officer under this Act (including a determination, direction, decision or approval of the Director-General), the Director-General may review the determination, direction, decision or approval and may affirm, vary or annul it.
15. A person affected by a determination, direction, decision or approval of an officer under this Act (except a determination, direction, decision or approval of the Director-General) may, within such time (if any) as is prescribed, appeal to the Director-General and the Director-General may affirm, vary or annul the determination, direction, decision or approval.”

*Support Area:*	*Assistive technology*
*Budget:*	$750
*Details:*	Funding for repairs & maintenance of assistive technology
*How will the supports be paid:*	NDIS will pay my support provider directly for these supports
*Support Area:*	*Improved daily living*
*Budget:*	$3,255,70
*Details:*	Funding for an allied health professional or therapist to assess and provide support in assisting you to meet your goals of mobility, strength & stamina, & improving your daily routines and assistive technology.
*How will the supports be paid:*	NDIS will pay my support provider directly for these supports
*Support Area:*	*Improved health and wellbeing*
*Budget:*	$3,428.64
*Details:*	Funding to assist you to develop and maintain muscle strength through exercise physiology.
*How will the supports be paid:*	NDIS will pay my support provider directly for these supports
*Support Area:*	*Support coordination*
*Budget:*	$1,845.40
*Details:*	Support coordination to assist you to achieve the goals in this plan through providing assistance to choose and coordinate providers, develop service agreements, manage the funding in this plan, use the participant portal, find and link with appropriate services, organisations and activities in the community, resolve queries or concerns that may arise and develop goals for future plans.
*How will the supports be paid:*	NDIS will pay my support provider directly for these supports
*Support Area:*	*Transport*
*Budget:*	$1,606.00
*Details:*	A contribution to your transport costs to be paid to your nominated bank account
*How will the supports be paid:*	NDIS will pay me directly for these supports
*Support Area:*	*Core supports*
*Budget:*	$17,357.44
*Details:*	Funding for your identified assistive technology needs based on an assessment from a relevant therapist. Any further funding for your assistive technology needs is to be considered based on recommendations submitted from a relevant practitioner to NDIS (completed assessment and relevant quote). This recommendation will be considered against the reasonable and necessary consideration. Establishment fee to cover providers establishing arrangements for your community access. Individual assistance to support you to attend and participate in community, social and recreational activities of your choice at the Standard Level.
*How will the supports be paid:*	NDIS will pay my support provider directly for these supports”[15]