Pavlakis and National Disability Insurance Agency - [2023] AATA 2485

Pavlakis and National Disability Insurance Agency [2023] AATA 2485 (10 August 2023)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2022/9579
Re:Paul Pavlakis
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Senior Member K Buxton
Date:10 August 2023
Place:Brisbane

The decision under review is set aside and the decision is remitted for reconsideration with a direction that the Applicant’s approved statement of participant supports specifies:
a)From the date of this decision, funding for:
a.Short-term Accommodation for four weeks per annum; and
b.42 hours per week for 48 weeks per year of support worker funding (a reduction from 52 weeks); and

b)That the reasonable and necessary supports otherwise specified be replicated until the reassessment date of 13 June 2024.

........[sgn]................................................................
Senior Member K Buxton
Catchwords
Application for Review of Decision — National Disability Insurance Scheme — Plan — Review of Supports in Plan — Statement of Participant Supports — Section 42D Remittal — New Plan — Whether 42D remittal creates a new plan — Whether Reviewable decision Ultra Vires — Decision under review set aside and remitted —
Legislation
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013
Administrative Appeals Tribunal Act 1975 (Cth)
Cases
Klewer v National Disability Insurance Agency [2023] FCA 630
McGarrigle v National Disability Insurance Agency [2017] FCA 308; 252 FCR 121
Williamson and National Disability Insurance Agency [2019] AATA 2944
Dorrington and National Disability Insurance Agency [2022] AATA 1714
Rogers and NDIA [2022] AATA 2809
Commissioner of Taxation v. Cancer and Bowel Research Association Inc (2013) 305 ALR 534, [2013] FCAFC 140
Esposito v Commonwealth [2015] FCAFC 160
Craig v South Australia [1995] HCA 58
DZNB v National Disability Insurance Agency [2022] AATA 1326
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250; [2019] HCA 16
QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189
Minister for Immigration and Border Protection v Makasa [2021] HCA 1
RTRH and National Disability Insurance Agency [2022] AATA 205

Re Wendy Halliday as the Administrator of the Estate of the Late Ashley Pauling and Secretary of Social Services [2018] AATA 3865
National Disability Insurance Agency v Davis [2022] FCA 1002
BIJD and National Disability Insurance Agency [2018] AATA 2971
Secondary Materials
National Disability Insurance Scheme (Supports for Participants) Rules 2013
NDIS Operational Guidelines- Short Term Accommodation or Respite
REASONS FOR DECISION
Senior Member K Buxton
INTRODUCTION

The Applicant, Mr Paul Pavlakis, is a 44-year-old man who is a participant in the National Disability Insurance Scheme (“NDIS”). He has sought review of decision by a delegate of the Chief Executive Officer (“CEO”) of the National Disability Insurance Agency (“the Respondent”) dated 22 November 2022 (“the internal review decision”) made pursuant to subsection 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) (“the Act”).
The Applicant’s medical history is set out in the medical evidence before the Tribunal. His impairments arise primarily from:
(a)Complex Post-Traumatic Stress Disorder;
(b)Borderline Personality Disorder;
(c)Depression; and
(d)Anxiety.
On 12 May 2022, a delegate of the Respondent approved a statement of participant supports (“SPS”) for the Applicant under section 33(2) of the Act (and this was included in the Applicant’s previous plan).[1] The previous plan provided for $142,517.86 in funded supports for a 24-month period, including:
[1] HB R1, p.343.
(e)Core supports in the amount of $29,905.20, comprising of:
(i)2 hours per week of assistance with personal domestic activities (plan-managed);
(ii)3 hours per week of access to community at the weekday daytime rate for social and recreational activities (plan-managed);
(f)Capacity Building supports in the amount of $112,612.66, comprising of:
(i)$2,971.50 Improved Life Choices (CB Choice & Control) funding for plan management and financial administration (NDIA-managed);
(ii)$49,253.04 Improved Daily Living (CB Daily Activity) funding for psychology and occupational therapy to develop strategies to build functional capacity and assess housing support needs (plan-managed); and
(iii)$60,388.12 for support coordination, including 4 hours per week of psychosocial recovery coaching (plan-managed) and 65 hours per year of specialist support coordination (Level 3) (NDIA-managed).
The Respondent's records demonstrate that the Applicant utilised the previous plan, which was in effect from 12 May 2022 (until it was replaced on 24 October 2022), as follows:
(a)Core support budget—$1,409.29 was utilised and $6,409.60 was unspent;
(b)CB Choice & Control budget—$754.60 was utilised and $104.45 was unspent;
(c)CB Daily Activity budget—$11,947.34 was utilised; and
(d)Support coordination—$20,277.74 was utilised and $1,479.94 was unspent.
Following a registrar-initiated review under section 48 of the NDIS Act, on 24 October 2022, a delegate of the Respondent approved a statement of participant supports for the Applicant in the form of a NDIS participant plan under section 33(2) of the Act [2] (which was included in the Applicant's current plan). The Applicant's current plan provided for a significant increase in funded supports when compared with the previous plan, providing for $221,708.57 in funded supports for a 12-month period, including:
[2] HB R1, p.360.
(a)Core supports in the amount of $166,481.34, comprising:
(i)42 hours per week of support worker assistance, for activities of daily living and access to community, social and civic participation (SCCP), at the following rates:
·         30 hours per week of 1:1 support worker assistance at the weekday rate
·         6 hours per week of 1:1 support worker assistance at the Saturday rate
·         6 hours per week of 1:1 support worker assistance at the Sunday rate
(ii)39 hours per year of 1:1 support worker assistance at the Public Holiday rate for activities of daily living;
(iii)$11,520.60 for 90 days per year of Medium Term Accommodation (MTA) (NDIA-managed);
(b)Capacity Building supports in the amount of $55,227.23, comprising:
(i)$1,485.75 improved life choices (CB Choice & Control) funding for plan management and financial administration (NDIA-managed);
(ii)$24,626.52 improved daily living (CB Daily Activity) funding for psychology and occupational therapy to develop strategies to build functional capacity and assess housing support needs (plan-managed); and
(iii)$29,114.96 for support coordination, including 1 hour per week of psychosocial recovery coaching, 100 hours of specialist support coordination (Level 3) and 52 hours of support coordination (Level 2) (NDIA-managed).
On or around 17 November 2022, the Applicant requested internal review of the current plan.[3] The delegate recorded the following issues that the Applicant identified:
(a)the Applicant wanted to know who the planner was;
(b)the Applicant wanted to know why a review meeting was held in his absence;
(c)the Applicant wanted to know why a verbal request for s100 review was not actioned; and
(d)the Applicant wanted a Freedom of Information check in relation to the calls he had made to the Agency.
[3] HB R1, p 330.
On 22 November 2022, a delegate decided on internal review under section 100(6) of the Act to affirm the original decision on the basis that the requests made by the Applicant were not reviewable under section 99 of the Act which resulted in the Applicant's current plan continuing without change (the internal review decision).[4] On 22 November 2022, the Applicant made an application to the Tribunal for review of the internal review decision.
[4] HB R1, p 239.
According to the Respondent’s records, on 12 May 2023, the Applicant had $154,994.87 of the total amount of funded supports ($221,708.57) yet to be utilised. The Respondent's records indicated that the Applicant has the following unspent funding remaining in his plan:
(a)Core support budget—$121,650.94;
(b)CB Choice & Control budget—$1,148.95;
(c)CB Daily Activity budget—$12,922.54; and
(d)Support coordination—$19,272.44.
SCOPE OF THIS REVIEW
The Applicant represented himself during the hearing and in the processes leading up to hearing. Prior to the hearing, the Respondent expressed the view that the issues in dispute before the Tribunal were “unparticularised” but “inferred”[5] from the Applicant’s material that he was seeking the following supports to be accepted as reasonable and necessary supports pursuant to section 34(1) of the Act and the Rules, such that funding for those supports be included in his statement of participant supports:
(a)       accommodation/tenancy assistance;
(b)       assistance to access and maintain employment and higher education;
(c)       assistance in coordinating or managing life stages, transitions and supports;
(d)       assistance with travel and transport arrangements;
(e)       innovative community participation;
(f)        participation in community, social and civic activities;
(g)       assistance animals; and
(h)       assistance with Independent Living Options (ILO).
[5] HB R2, p 452.
On the first day of hearing[6] the Tribunal remitted the decision to the Respondent for reconsideration pursuant to section 42D of the Administrative Appeals Tribunal Act1975 (Cth) (AAT Act). The Respondent had indicated in its Statement of Facts, Issues and Contentions[7] that it did not oppose various aspects of the Applicant’s plan being plan-managed, rather than Agency-managed (but not self-managed by the Applicant). The decision was set aside on reconsideration, and a new decision made on 29 May 2023[8] that provided for plan-management of all supports other than Support Co-ordination, Psychosocial Recovery Coaching and some financial administrative costs. The review date was changed to 28 May 2024. The other aspects of the reviewable decision were unchanged (although more is said below about the form of this decision and a subsequent decision, made on 14 June 2023, also following remittal for reconsideration under section 42D of the AAT Act).
[6] 23 May 2023.
[7] HB R2, p 465, [73] - [74].
[8] HB R4, p 510.
During the hearing, the Respondent indicated that it was also proper for the Level 2 Support Co-ordination budget in the reviewable decision to be plan managed (providing the Applicant with greater flexibility in choice of provider), and submitted that the remainder of the supports that were specified in the reviewable decision to be Agency-managed should remain so in order to ensure that Specialist Support Co-ordination and Psychosocial Recovery Coaching funded for the Applicant be undertaken by a registered service provider,[9] and that the plan manager was not responsible for managing and paying its own expenses from the Applicant’s funded supports.
[9] In accordance with s33(6) of the Act.
On the second day of the hearing[10] the Applicant confirmed that he no longer sought to self-manage his funds and was content for the funds to be managed in accordance with the provisions made in the decision under review dated 29 May 2023. He wished, instead, to focus only upon the reasonable and necessary supports to be specified in his statement of participant supports (“SPS”). Later, on the same day, the Applicant indicated that he wished to challenge the Agency-management aspect of his funded supports. He contended that any Agency-management of funds would make him subject to the whim of the Respondent, who could interfere with his choice and control of any “line item” in his plan at any time.
[10] 6 June 2023.
On the final day of the hearing, the Respondent indicated that the evidence given during the hearing supported the funding of further reasonable and necessary supports and the decision was again remitted under section 42D of the AAT Act for further consideration of this new evidence. On 14 June 2023 a new decision was made approving a statement of participant supports that provided annual funding of $228,341.89 and incorporated previously unincluded funding for a dietician (8 hours) and exercise physiologist (12 hours), leading to an additional of $4,999.72 of capacity building supports being funded in a new well-being budget, and for the Applicant’s therapy supports to be used flexibly to allow for occupational therapy in the place of some funded psychology. Further funding for meetings between his multi-disciplinary team was also included, as were the changes to plan management of all but the funded supports for Support Co-ordination, Psychosocial Recovery Coaching and financial administrative costs which remained specified in that decision as being Agency-managed. Other supports remained as in the earlier approved plan.
Nature of the decision made following section 42D remittal
The Tribunal observes that each of the decisions, made following remittal by the Tribunal under section 42D of the AAT Act, have been described as a “new plan” and each is specified as taking effect for a different (later) period to that of the original decision. For the reasons set out below, the Tribunal has concluded that these decisions do not have that effect as there is no power in the Tribunal, and therefore no power in the decision maker on reconsideration, to issue a new plan. However, the decisions do specify particular aspects of the reviewable decision that are within power on reconsideration as they relate to the original section 33(2) decision. It is therefore necessary to determine whether the reconsidered decisions meet the requirements of section 42D and, if so, what the effect is of the latest reconsidered decision, in order to determine the issues that remain in dispute in this review.
Section 42D of the AAT Act provides, relevantly:
s.42D Power to remit matters to decision-maker for further consideration
(1) At any stage of a proceeding for review of a decision other than a proceeding in the Social Services and Child Support Division, the Tribunal may remit the decision to the person who made it for reconsideration of the decision by the person.
Powers of person to whom a decision is remitted
(2) If a decision is so remitted to a person, the person may reconsider the decision and may:
(a)      affirm the decision; or
(b)      vary the decision; or
(c) set aside the decision and make a new decision in substitution for the decision set aside.
Note:          For time limits, see subsection (5).
(3) If the person varies the decision:
(a) the application is taken to be an application for review of the decision as varied; and
(b) the person who made the application may either:
(i) proceed with the application for review of the decision as varied; or
(ii) withdraw the application.
(4) If the person sets the decision aside and makes a new decision in substitution for the decision set aside:
(a) the application is taken to be an application for review of the new decision; and
(b)      the person who made the application may either:
(i) proceed with the application for review of the new decision; or
(ii) withdraw the application.
…
(7) If the person has not reconsidered the decision, and done one of the things mentioned in paragraphs (2)(a), (b) and (c), within the period applicable under subsection (5), the person is taken to have affirmed the decision.
(8)      If the person affirms the decision, the proceeding resumes.
Section 42D of the AAT Act provides that if a reviewable decision is varied, or set aside and substituted, then the Applicant may choose to proceed with the review application, which is taken to be an application to review the new decision. If a reconsidered decision is not made in the manner described in section 42D(2), the decision is taken to be affirmed and the proceeding resumes as it was prior to the remittal. Used in this way, section 42D is a beneficial power of the Tribunal to provide the opportunity for the Respondent to reconsider the decision based on updated information and can lead to a decision which narrows the scope of the review and, if the decision is acceptable to the Applicant, can resolve the review without the need for a hearing. Here, the Applicant has not withdrawn his Application and the Tribunal has proceeded with the review. Following the 14 June 2023 decision, the review is “taken to be” an application for review of the 14 June 2023 decision, so long as it is validly made having regard to section 42D of the AAT Act.
The power in section 42D of the AAT Act, to remit a matter for reconsideration whilst merits review proceedings are on foot, is frequently engaged by the Tribunal in NDIS reviews concerning supports in a participants plan, particularly where the Respondent wishes to make additional funds available to a participant whilst a review about the underlying SPS remains on foot, because, for example, a support is no longer disputed by the Respondent or additional funds are needed urgently. This process is not one that has, to date, been regarded by the Tribunal, or by the parties, as transmogrifying the review application from one thing into another, different thing. However, in the recently decided Klewer v National Disability Insurance Agency[11] (“Klewer”), Justice Raper considered the effect of a series of decisions made following remittals under section 42D of the AAT Act whilst merits review proceedings were on foot before the Tribunal. Her Honour made reference to a number of “new plans” that were approved following remittals under section 42D[12] and noted that Mr Klewer had “not appealed” those orders. The necessity to consider whether a new plan was made on 14 June 2023 has therefore been brought about by the decision of the Federal Court in Klewer, which was made on 15 July 2023 (the day after the 14 June 2023 decision).
[11] [2023] FCA 630.
[12] Ibid [180] to [190].
In Klewer, her Honour determined that a decision made by the Respondent following a section 42D remittal had the effect of "altering" the reviewable decision[13] such that the application for review to the Tribunal was taken to be an application for review of the statement of participant supports approved by a delegate of the CEO on 7 June 2021.[14] As the Respondent submitted, and the Court apparently accepted, that a new plan was created, this led to her Honour concluding that “the effect of the power under s 42D is such that the Tribunal’s function transmogrifies from being one about the former plan to be being about the new plan”.[15] Her Honour went on to observe:[16]
Also upon remittal, s 37(1) of the NDIS Act has the separate effect of automatically creating a new start date for a plan. The approval of a statement of participant supports was remitted under s 42D. The review date is part of the statement of participant supports. Therefore, by virtue of s 42D, Mr Klewer’s application is then taken to be an application for review as varied. (Emphasis added)
[13] Ibid at [190], [199].
[14] Ibid at [196].
[15] Ibid at [201].
[16] Ibid at [202].
In Klewer, the Respondent had described the decisions made following remittal under section 42D to the Court as “new plans” without any apparent appreciation for the fact that a new plan cannot be approved without engagement of the process in sections 48 and 49 of the NDIS Act, and without regard to the fact that the reviewable decision is not the “plan”, or a decision to issue a plan, but is limited to the decision under section 33(2) of the NDIS Act to approve a statement of participant supports. Although it is not possible for a reconsideration of a section 33(2) decision to provide a source of power to create a new plan with force and effect under section 37 of the NDIS Act, the Respondent in Klewer nonetheless appeared to conduct the appeal upon that flawed premise. This led her Honour to conclude:[17]
It is clear that a number of the remittals involved changing the review date in the plan and led to the creation of a new plan which was the subject of a further remittal.
[17] Ibid at [200].

There is no difficulty with the first part of this conclusion. A re-assessment date is one of the aspects of the statement of participant supports expressly provided for in section 33(2) of the NDIS Act and therefore open to be reconsidered at any time in the review process. Her Honour noted, uncontroversially, that “by virtue of s 42D, Mr Klewer’s application is then taken to be an application for review as varied”. However, it appears that neither the Applicant nor the Respondent made submissions to the court about whether any aspect of the remade decision was ultra vires and, therefore, was of no effect in re-shaping the review. As to the second part of the conclusion, what remains unclear is what power the delegate would have been entitled to exercise in order to create a new plan or, indeed, to arrive at a new start date. If the effect of that decision, properly construed, was that a new plan had not been created but, rather, aspects of the reviewable decision had been reconsidered and the approved SPS remade with effect from the date of the original decision, there would have been no limitation on the temporal scope of the matters before the Tribunal for review. However, in Klewer, the Court determined that the “case as run before the Tribunal” was prospective as to the supports being sought by the Applicant, and that the “point in time being considered on review” depended “on what was the internal review decision before the Tribunal”.[18] Her Honour concluded that the Tribunal did not misunderstand the question being asked of it but rather acted in a manner consistent with what the parties has asked of it (which, it was found, was to review the “new plan” made following remittal under section 42D). However, in a de novo merits review, it is not a matter for the parties to determine the scope of the review or for the Tribunal to answer the question being asked of it by the parties. The Tribunal is to discharge its statutory function on review, not some different function designed by the parties.
[18] Klewer at [168].
The High Court in Frugtniet v Australian Securities and Investments Commission (“Frugtniet”),[19] confirmed the long-settled scope and limitations of the Tribunal’s review jurisdiction as requiring the Tribunal to re-consider, afresh, the question before the primary decision maker and to address the same question the primary decision-maker was required to address.[20] In QDKH and the National Disability Insurance Agency (“QDKH”)[21] the Full Court of the Federal Court, applied the reasoning in Frugtniet, in the setting of a review of this nature, and noted that the decision whether to ‘approve’ a ‘statement of participant supports’ under subsection 33(2) of the NDIS Act was informed by the scope of that provision.[22]In Minister for Immigration and Border Protection v Makasa,[23] the High Court stated: “[t]he function of the AAT … is “to do over again” that which was done by the primary decision-maker”. [24]Consistent with this approach, the Tribunal is not limited to consideration of matters at the time of the internal review decision, rather it is obliged to consider the totality of relevant matters from the date the original decision first had (or could have had) effect.[25]
[19] (2019) 266 CLR 250; [2019] HCA 16 (15 May 2019).
[20] Frugtniet, [14]-[15]; [51].
[21] QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189.
[22] QDKH, [10(b)]; discussed in Rogers and National Disability Insurance Agency [2022] AATA 2809 at [16].
[23] [2021] HCA 1.
[24] Ibid, [50].
[25] RTRH and National Disability Insurance Agency [2022] AATA 205 at [93]. See also QDKH v National Disability Insurance Agency [2021] FCAFC 189 at [7].
It does not appear that the Court in Klewer was referred to the decision of the Full Court of the Federal Court in QDKH, in which it was determined that it was not a matter for a participant to identify the particular supports sought, but for the Tribunal, standing in the shoes of the original decision maker, to conduct a full merits review and determine for itself the decision that should be made. It is unclear how the manner in which an Applicant conducts its case can excuse the Tribunal from this task. It is also unclear how choices made by the delegate on remittal could have the effect of excusing the Tribunal in this way and, at the same time, limiting the period for which the Applicant can exercise review rights. Notwithstanding, it appears that the Court in Klewer arrived at a conclusion, that was inconsistent with that arrived at in QDKH, that the Tribunal could limit itself to reconsidering only the reasonable and necessary supports from the new start date nominated in the latest decision following remittal.
The practical effect of section 42D upon supports sought for a period earlier than the specified start date of the decision made following remittal was not explored further by her Honour in Klewer. The court noted that Mr Klewer had not run his case on the basis that he was seeking retrospective re-imbursement for supports that should have been funded prior to 7 June 2021. On appeal, Mr Klewer submitted that any facts post-dating the original plan were irrelevant[26] and that the Tribunal should have limited itself to a consideration of supports only for that period of time.[27] This submission did not appear to take account of the fact that the reassessment date is part of the section 33(2) decision and the end date could, therefore, move forward in time in a reconsidered decision. In response to the Applicant’s narrow interpretation of the scope of the review, the NDIA relied on the following passage from McGarrigle v National Disability Insurance Agency (‘McGarrigle’)[28], in which Justice Mortimer (as the Chief Justice then was) explained the Tribunal’s functions in the context of reviewing decisions under the NDIS Act as follows:[29]
Section 99 of the Act identifies the decisions under the Act which are reviewable by the Tribunal. Included in this list are decisions made under s 33(2). Section 33(2) must be read with s 32 - the obligation to “facilitate” the preparation of a participant’s plan. In that context s 33(2), stating as it does in mandatory language what a plan must specify, confers an additional function on the CEO (and her or his delegate) of “approving” the necessary or reasonable supports required by the participant. This is confirmed by several other provisions. First, s 33(2)(b) which speaks of supports “that will be funded” — meaning, in my opinion, those supports the CEO approves to be funded. Second, s 37, which provides that a plan only comes into effect when approved by the CEO, and third, s 39 which imposes a duty on the Agency to comply with a statement of participant supports. Therefore, what is entered in a plan as a support becomes a determinative factor in the administration of the scheme. As the respondent submitted, by s 33(3), supports may be generally described or may be specifically identified. Either way, the function being performed on review by the Tribunal is to approve, vary or modify the supports as set out in a participant plan. In performing that function, the Tribunal must have regard to the matters set out in s 33(5), and form its satisfaction in accordance with s 34.
[26] Ibid at [155].
[27] Ibid at [157].
[28] [2017] FCA 308; 252 FCR 121.
[29] Ibid at [85].
As can be seen from this explanation by Justice Mortimer about the consequences of a review by the Tribunal, although a different SPS may be inserted into the plan made under section 37, it is not a “new plan” that is generated by the remaking of the SPS on review. The conclusion reached in Klewer about the creation, on review, of a new plan is therefore at odds with the conclusion reached in McGarrigle that the function of the Tribunal is to approve, vary or modify the supports in the existing plan.
For the following reasons, the Tribunal prefers the reasoning in McGarrigle that a new plan is not formed on review. In this case, the original statement of participant supports was approved on 24 October 2022. In reconsidering that decision, whether in the course of a review under section 100 of the NDIS Act or following a remittal under section 42D of the AAT Act, the decision-maker can only validly re-exercise the same powers available to the original decision-maker (which in turn are the same powers exercisable by the Tribunal on review). The source of the power to make the 14 June 2023 decision was section 42D(1) of the AAT Act. Such a remittal of a decision for reconsideration authorises the making of a statutory reconsideration decision under section 42D(2). Therefore, following remittal under section 42D, the delegate was authorised to reconsider all matters that were before the person who made the reviewable decision which confirmed the primary decision under section 33(2) of the NDIS Act.[30] More particularly, the delegate was authorised to reconsider all elements of the SPS approved in the primary decision.[31] Following a section 42D remittal, if the Respondent specifies additional supports, or other features of the SPS that are expressly within power, having regard to section 33(2) of the NDIS Act, it is open to the Respondent to re-issue the original plan, with the updated SPS. However, it is not within the statutory powers of the Respondent, and therefore not open to the Respondent, to issue a new plan as the decision does not bring about the ending of the original plan in the way prescribed by sections 37(3) and 48 of the NDIS Act.[32]
[30] Dorrington and National Disability Insurance Agency [2022] AATA 1714 [46]; Williamson and National Disability Insurance Agency [2019] AATA 2944 at [91]
[31] See Dorrington and National Disability Insurance Agency specifically at [44] and more generally in relation to the operation of section 42D of the AAT Act.
[32] See discussion in Rogers and NDIA [2022] AATA 2809 at [28] – [31].
Where a decision-maker has erroneously misconstrued its own task and arrived at a reviewable decision that is partially ultra vires, erroneous aspects of that decision do not operate to constrain the extant review jurisdiction of the Tribunal to conduct a de novo review. In Williamson and National Disability Insurance Agency, [33] DP Forgie noted that the power to reconsider a remittal under section 42D of the AAT Act comes from the Tribunal’s decision to remit, and stated: [34]
…It goes without saying that the decision that the decision-maker reaches after reconsideration must be a decision that can be made in accordance with the powers and discretions given by the relevant enactment under which the original decision was made.
[33] [2019] AATA 2944.
[34] Ibid at [91].
This proposition “goes without saying” because it aligns with orthodox administrative law principles. An intermediate decision-maker infected with jurisdictional error when undertaking a section 42D reconsideration cannot constrain the review jurisdiction of the Tribunal in an extant review. If this were permissible, the review rights of the Applicant could be altered or constrained by the unilateral actions of the agency whose decision is subject to review. The delegate’s actions cannot be directed by the Tribunal[35] but if the reconsidered decision is infected with error, these actions will not prevent an effective correction by the Tribunal on review. Where a decision is partly ultra vires the erroneous aspect may be severable from the balance of the decision,[36] so long as the decision may continue to operate without those aspects that are ultra vires. A decision may be ultra vires in a variety of ways, including where the decision-maker misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case.[37]
[35] Commissioner of Taxation v. Cancer and Bowel Research Association Inc (2013) 305 ALR 534, [2013] FCAFC 140.
[36] Esposito v Commonwealth [2015] FCAFC 160 at [110] per Allsop CJ. Fick and Perram JJ.
[37] Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at [12].
To demonstrate how aspects of the 14 June 2023 decision are ultra vires, it is necessary to revert, again, to the nature of the reviewable decision which, in this case, is the decision to approve a statement of participant supports made on 24 October 2022,[38] and the subject of an internal review decision made on 22 November 2022 under section 100 of the NDIS Act. From 24 October 2022, when a new SPS was approved and with the Applicant’s goals received, section 37(1)(b) of the NDIS Act was satisfied and the previous plan ceased to be in effect under section 37(3)(a) of the NDIS Act because it had been replaced by the 24 October 2022 plan using the mechanism set out in Division 4 of the NDIS Act. Any proper reconsideration of that decision may include all periods from that date and take account of the same issues as those originally considered by the delegate of the CEO. 24 October 2022 will remain the date from which consideration of the funded supports, and other aspects of the SPS, is to be undertaken in this case. That does not mean that all funded supports will need to be specified from that date: it will be a question of fact in each case from when supports that are found to be reasonable and necessary, but have not yet been funded under the NDIS, ought to be specified in the way contemplated by section 33(2) of the NDIS Act. However, the delegate who made the 14 June 2023 decision misconceived the nature of the function being exercised and purported to go beyond the reconsideration of the SPS (and its inclusion in the original 24 October 2022 plan) to issue a new plan, beyond power.
[38] NDIS Act s99.
The Tribunal notes that the Court in Klewer sought to distinguish the decision in McGarrigle on the basis that it did not involve a decision made following a section 42D remittal. However, as a decision made under section 42D cannot validly take effect to the extent that it exceeds the powers of the Tribunal remitting, and given that the Tribunal’s powers in a review of this nature are to reconsider all aspects of the SPS (and not what the parties have requested, agreed or otherwise sought to limit), there is no proper basis upon which the Tribunal can distinguish the decision in McGarrigle in this case.
The Tribunal’s review will not result in the lawful creation of a new plan: it involves no more than a reconsideration of the SPS, with which the participant disagreed at the time that SPS was included in the participant’s (then existing) plan. A plan cannot be replaced other than following the reassessment process under sections 48 and 49 of the NDIS Act.[39] The exercise of merits review rights of the original decision is not a reassessment under section 48 of the NDIS Act. If it were, a participant would never be able to affect change to an existing plan by exercising their merits review rights designed to achieve that end because every successful review would lead to the creation of a new plan, instead of the correction on review of the existing plan. It follows that a new plan cannot validly be issued as a result of a section 100 review decision, a decision of the Tribunal on review, or a decision made following remittal to a delegate under section 42D of the AAT Act.[40]
[39] DZNB v National Disability Insurance Agency [2022] AATA 1326 at [38].
[40] See discussion of various Tribunal decisions in Rogers and National Disability Insurance Agency [2022] AATA 2809 from [23] to [31].
Anecdotally, the Tribunal observes that a new plan (for a new period) is what the Respondent routinely purports to issue following any decision it makes in purported re-consideration of a section 33(2) approval if any changes are to be made to the SPS (whether the source of power for the remade decision is section 100 of the NDIS Act or section 42D of the AAT Act). The undesirable consequences of adopting this approach were helpfully explained In RTRH and National Disability Insurance Agency,[41] where the Tribunal noted:
Some care is required to ensure that this distinction is not lost when considering the ambit of the Tribunal’s jurisdiction. It is inapt and incorrect to refer to a request for review of an SPS decision as a request for review of an NDIS plan, or to refer to an SDS approval decision, or an internal review of such a decision, as an approval or internal review of a participant’s plan. The importance of the difference between reviews of these kinds was noted by the Tribunal in NNXF v National Disability Insurance Agency (NNXF).[42] Where inapt language is used, it may lead to confusion or error. Furthermore, it may be adopted by participants who do not know better, and this may affect the exercise of clear and separate review rights conferred under s 48 and under s 100 of the NDIS Act. (References removed).
[41] [2022] AATA 205 at [83].
[42] [2019] AATA 5552 at [46].
To date, the Tribunal has politely ignored the Respondent’s practice in purporting to issue “new plans” following section 42D remittals despite such decisions being ultra vires. There are pragmatic reasons to look past jurisdictional error in reviewable decisions – merits review provides the opportunity to “do over again” that which was done by the CEO and, therefore, provides the salve to such legal injury. As aptly observed by the Tribunal, constituted by Deputy President McCabe and Member Bygrave, in Re Wendy Halliday as the Administrator of the Estate of the Late Ashley Pauling and Secretary of Social Services (“Re Pauling”):[43]
There is a danger of over-thinking some of the jurisprudence on jurisdictional error. The provisions of the AAT Act (read in light of the decisions in Brian Lawlor) point the way to dealing with defective decisions by original decision-makers. The fact the Tribunal is independent of the agencies whose decisions it reviews does not change the fact the Tribunal remains part of the executive. The Tribunal’s decision-making processes are incorporated by operation of law into the executive decision-making process that it reviews. If there is a problem – even a fundamental problem – encountered during the course of the original decision-making process, the Tribunal can set things to right. [44]
[43] [2018] AATA 3865 (11 October 2018).
[44] Ibid, [26].
The Tribunal is to conduct a review having regard to the description, provided by the Full Federal Court (Justices Rangiah, Perry and Abraham) in QDKH by his litigation representative BGJF v National Disability Insurance Agency[45] of the preparation of a statement of participant supports as; “a collaborative process: the CEO is required to “facilitate” the preparation of a participants plan (section 32(1)) and to prepare the SOPS “with” the participant (section 33(2))”. The CEO is to then “approve” the statement of participant supports. The Applicant is not required to enunciate all reasonable and necessary supports and the Tribunal is not relieved from its review task because the Applicant has not identified all relevant supports. It follows that the Tribunal’s task in this case is not limited to a consideration of the supports identified by the Applicant in the list set out above. It is a matter for the Tribunal to consider the evidence available at the time of hearing and determine, having regard to that evidence, whether the statement of participant supports in the reviewable decision specifies the reasonable and necessary supports. In this way, the Full Federal Court in QDKH has set out the extent and limits of the Tribunal’s review jurisdiction, amplifying the description of the “function being performed” provided by Justice Mortimer in McGarrigle v National Disability Insurance Agency.[46]
[45] QDKH by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189, at [10(d)].
[46] [2017] FCA 308; 252 FCR 121 at [85].
The approach to a review of a decision to approve a statement of participant supports, described in QDKH and McGarrigle, as informed by Frugtniet and Makasa, is at odds with certain of the observations made and conclusions reached by Justice Raper in Klewer. As noted by her Honour in Klewer, the correct approach in such cases is to consider reasonable and necessary supports based on the best and most current material available and on a de novo basis.[47] Further, the Tribunal notes that it was not necessary for her Honour to expressly decide, in Klewer, if any part of the decision remade by the delegate on 7 June 2021 was ultra vires or to what extent the temporal aspects of that decision impacted the Tribunal’s review jurisdiction. In the event, her Honour decided to remit the matter to the Tribunal due to a jurisdictional error based on a want of procedural fairness. For these reasons, it was not necessary for her Honour to decide what, if any, effect a reconsideration of the reviewable decision would have, in relation to supports, had they been sought for a period after approval of the original SPS but earlier than 7 June 2021. Nor was her Honour tasked with making any findings as to the scope of that review jurisdiction. Any comments made in Klewer that tend to suggest that an ultra vires decision of a delegate, made following a remittal under section 42D of the AAT Act, can alter extant review jurisdiction of the Tribunal are therefore obiter and, in any event, cannot be followed to the extent that they conflict with High Court and Full Federal Court authorities discussed above and are inconsistent with the reasoning in McGarrigle. For those reasons, I respectfully depart from the conclusion reached in Klewer that there is any power in the delegate, following a section 42D remittal, to make a new plan with a new start date or that the scope of the Tribunal’s review is transmogrified as a result of that decision.
[47] Klewer [2023] FCA 630 at [163].

I have considered whether, as a result of erroneous aspects of the reconsidered decision dated 14 June 2023, there has effectively been no decision, in which case the deeming provision in section 42D(7) of the AAT Act would operate so that the decision is taken to affirm the earlier decision. I am satisfied that the elements of the 14 June 2023 decision that related to funded supports, management of funds and reassessment date are sufficiently identifiable from that document and that each of these aspects of an approved statement of participant supports is expressly provided for in section 33(2) of the NDIS Act. The preferable interpretation of that decision is that it is evidenced by the document produced by the Respondent, dated 14 June 2023 and labelled as a new plan, and has the effect of setting aside the earlier reviewable decision and to substituting a decision to approve a statement of participant supports with the additional funded supports, arrangements for management of funds and re-assessment date as specified. The other aspects of the document, being the apparent suggestion that a new “participant’s plan” has been issued and asserting a new date of effect of 14 June 2023 for the section 33(2) decision, are not within the decision-making power of the delegate as they are not authorised under section 33(2) of the NDIS Act. Where a decision is partly ultra vires the erroneous aspect may be severable from the balance of the decision.[48] That approach is to be adopted in this case where the Tribunal is permitted to proceed on the basis that those erroneous parts of the 14 June 2023 document do not (because they cannot) form part of the newly made reviewable decision.
[48] Esposito v Commonwealth [2015] FCAFC 160 at [110] per Allsop CJ. Fick and Perram JJ.
In National Disability Insurance Agency v Davis,[49] Justice Mortimer observed that the nature of the scheme is remedial and should be interpreted with pragmatism:
The NDIS Act is beneficial and remedial legislation designed to operate in relatively high volume decision-making, in a pragmatic context, and in respect of people (and their families and carers) already facing great challenges in their daily lives. The NDIS Act’s construction and operation should not be beset by parsing, technicalities and distinctions which make the legislative scheme more difficult to comprehend and administer, including for first instance decision-makers and the Tribunal on review. See to similar effect the observations of French CJ in International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; 240 CLR 319 at [42].
[49] [2022] FCA 1002.
A construction that allows a decision-maker, on remittal, to itself change the scope of course of the review by imposing a temporal limit upon the Tribunal’s review jurisdiction, would be surprising and unintended. Consistently with the principles enunciated in both Davis and QDKH,[50] the intersection between the AAT Act and the NDIS Act should be construed in a way which best serves the beneficial purpose of the NDIS Act and the principles set out in section 4, which include that “[p]eople with disability should be supported in all their dealings and communications with the [National Disability Insurance Scheme Launch Transition] Agency and the [NDIS Quality and Safeguards] Commission so that their capacity to exercise choice and control is maximised in a way that is appropriate to their circumstances and cultural needs”.[51] The Tribunal is not, therefore, constrained by the aspect of the reviewable decision that purports (wrongly) to impose a new plan with a start date on 14 June 2023 and can consider any supports that the original decision-maker could have considered from 24 October 2024.[52]
[50] QDKH by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189, at [10(e)].
[51] Ibid; Section 4(9) NDIS Act.
[52] These observations also apply to the earlier decision made in these proceedings following remittal under s.42D of the AAT Act.
The decision of the Tribunal automatically takes effect from the date on which the decision under review has or had effect. [53] This may date as far back as the CEO’s original decision if aspects of the SPS are to be specified for the supports which should have been specified in the original decision, particularly where the participant has already been meeting the cost. However, for forward looking issues, such as management of funds, re-assessment dates and funding for support not yet paid for by the participant, it may be necessary to expressly stipulate that these supports are to be funded from the date of the decision and not earlier. The preferable approach will depend on the facts in each case.
[53] Section 43(6) AAT Act.
For these reasons, the reviewable decision, dated 14 June 2023 and labelled as a “new plan”, has the effect of setting aside the earlier reviewable decision and to substituting a decision to approve a statement of participant supports with the additional funded supports, arrangements for management of funds and re-assessment date as specified. The remaining issues before the Tribunal in this review are:
(a)whether any additional reasonable and necessary supports, having regard to section 34(1) of the Act and the Rules, should be specified in the Applicant’s statement of participant supports; and
(b)how the reasonable and necessary supports contained in the Applicant's statement of participant supports should be managed, noting that the Applicant no longer seeks to self-manage his funds and now accepts the appropriateness of the mechanisms for the management of the funds in accordance with the decision under review dated 14 June 2023, apart from the issue of Agency-management (as opposed to plan management) of Support Co-ordination, Psychosocial Recovery Coaching and financial administrative costs.
In order to determine whether a support should be included in the statement of participant supports approved in the Applicant’s plan under subsection 33(2) of the NDIS Act, the Tribunal must have regard to the matters set out in subsection 33(5) of the NDIS Act and determine whether it is satisfied that the support is a “reasonable and necessary support” in accordance with the criteria in subsection 34(1) of the NDIS Act. The Tribunal is to be positively satisfied that the criteria have all been met in order to approve that disputed support for inclusion in the Applicant’s statement of participant supports.[54] Each of the following criteria for supports, set out in subsection 34(1) of the NDIS Act, must be satisfied for a support to be funded:
[54] BIJD and National Disability Insurance Agency [2018] AATA 2971, at [50].
(1) For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(a) the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
(b) the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
(c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d) the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e) the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f) the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(i) as part of a universal service obligation; or
(ii)in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
The word “reasonable” is informed by the criteria set out in subsection 34(1) of the NDIS Act, although its meaning is not exhausted by these factors. In relation to how the CEO’s function works in practice, Mortimer J said in McGarrigle: [55]
…the text and context of s 33(5)(c), read with s 34(1) indicates that the CEO (or the delegate or Tribunal) must either be satisfied that a support has the character of being a reasonable and necessary support, or that it does not. Once a support is identified and described… then the question for the CEO (or the delegate or Tribunal) is whether he or she is satisfied that support, as identified, is reasonable and necessary for that particular participant.
[55] McGarrigle v National Disability and Insurance Agency [2017] FCA 308, at [93].
Subsection 33(5)(d) of the NDIS Act requires the CEO to have regard to any criteria prescribed by the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (‘the Rules’) in relation to the manner in which the reasonable and necessary supports will be funded. The Rules made pursuant to subsections 34(2) and 35(1) of the NDIS Act provide further guidance with respect to the assessment of reasonable and necessary supports that will be funded. Pursuant to section 209 of the NDIS Act, the Rules are a legislative instrument and therefore have statutory force. In this case the relevant provisions are included within parts three and five of the Rules:
Value for money
3.1 In deciding whether the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support, the CEO is to consider the following matters:
(a)whether there are comparable supports which would achieve the same outcome at a substantially lower cost;
(b)whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long‑term benefit to, the participant;
(c)whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);
(d)for supports that involve the provision of equipment or modifications:
(iv)the comparative cost of purchasing or leasing the equipment or modifications; and
(v)whether there are any expected changes in technology or the participant’s circumstances in the short term that would make it inappropriate to fund the equipment or modifications;
(e)whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides;
(f)whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of supports (for example, some home modifications may reduce a participant’s need for home care).
General criteria for supports
5.1 A support will not be provided or funded under the NDIS if:
(a)it is likely to cause harm to the participant or pose a risk to others; or
(b)it is not related to the participant’s disability; or
(c)it duplicates other supports delivered under alternative funding through the NDIS; or
(d)it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs.
EVIDENCE
Both the Applicant, and various experts who have provided insights into the Applicant’s support needs, have identified a number of supports which may benefit the Applicant but for which funding is not currently provided. The Applicant indicated during the hearing that, whilst he was appreciative of the funding provided in his current plan, he wished to rely on the expertise of the medical and allied specialists in determining his reasonable and necessary supports. This is a perfectly proper approach. There is no requirement for a participant to identify the particular supports sought. It is a matter for the Tribunal to consider the evidence available at the time of hearing and determine, afresh, whether the statement of participant supports in the reviewable decision specifies all reasonable and necessary supports or whether it should be re-made to include additional specified supports. There was a significant volume of documentary evidence before the Tribunal, and various oral testimony, including from family and friends of the Applicant.
There is limited evidence available to the Tribunal with respect to some of the specific supports enunciated by the Applicant and listed in paragraph 9, above. The Tribunal observes that these supports were identified following the making of a direction earlier in these proceedings that required the Applicant to provide written confirmation of what, if any, additional supports he wishes to add to his plan to be considered in this application. Until that direction was made, the Applicant had not articulated any particular reasonable and necessary supports that were related to his disability but had not been funded. The Tribunal has looked to the list of supports identified by the Applicant only to the extent that evidence is available to the Tribunal that relates to those supports.
For example, the Applicant’s identified need for “accommodation/tenancy assistance” and “assistance with Independent Living Options” has been considered later in these reasons, having regard to the available evidence in relation to whether short-term and medium term accommodation are reasonable and necessary, and whether the funded levels of support co-ordination and psychosocial coaching to assist with disability-related needs associated with the Applicant’s living arrangements are reasonable and necessary.
The Tribunal has considered the issues of, “assistance to access and maintain employment and higher education” and “assistance in coordinating or managing life stages, transitions and supports” as relevant to psychosocial recovery coaching and psychology that supports the Applicant in these aspects of this life. The issue of occupational therapy is discussed below and whether this support may also be relevant to the Applicant’s disability-related needs. “Assistance with travel and transport arrangements” is discussed below under the heading “Transport”. The Tribunal has considered the issues of “innovative community participation” and “participation in community, social and civic activities” in the context of the evidence about his core supports providing community access.
As to the request for “assistance animals” this request was not advanced by any evidence given by the Applicant or his experts. The Tribunal notes that the Applicant is homeless and resides mostly in his car. He does not advance the proposition that he would be able to sustain the care of an assistance animal at the present time. If this is a recommendation made by his care team in the future, evidence addressing the statutory criteria for such a support would need to be gathered and considered by the Respondent during a future re-assessment process.
During the hearing, the Applicant explained that his primary concern was not with the level of funded supports, but that earlier funded supports, and his goals, had been changed without his input and that communication between the Applicant and the Respondent was dysfunctional. He asserted that he had not been able to access continuity of supports and that barriers existed to accessing his funded supports and that this had resulted in him not being able to use his funds. He stated:
“We’re confusing the funds from the delivery of service. There’s no problem with - the agency funding is not the issue, Member. It’s the agency’s role in delivery…”[56]
[56] Transcript Day 3 (7 June 2023), p.154, lines 33-35.
In undertaking a review of a decision made under subsection 33(2) of the Act, it is necessary to focus only on the reviewable decision, and not on matters which, whilst important to the Applicant, do not have any bearing on the review. The Tribunal’s jurisdiction is limited to a reconsideration of the reviewable decision. Therefore, evidence about complaints, criticisms and concerns expressed by, and on behalf of, the Applicant relating to the planning of the Applicant’s funded supports, and his difficulty accessing those supports and difficulties maintaining service providers, will not be addressed in the Tribunal’s decision and in these reasons. This was made plain to the parties prior to commencement of the hearing (at a Directions Hearing) and at various stages of the substantive hearing. However, as these issues have evidently consumed the Applicant for some considerable time, he, perhaps understandably, found it difficult to avoid reverting to his concerns. Communication shortfalls on the part of the Respondent also have little, if any, bearing upon the review as it is the role of the Tribunal to conduct a full merits review, de novo, of the decision, made in October 2022, to approve the statement of participant supports.
During their sworn evidence the Applicant’s friend, Mr Paul Byrne, and his cousin, Ms Vasiliki Nihas, also gave some evidence about these issues. The effect of the evidence from both witnesses was that the Respondent had failed the Applicant and that his health was worse now than when he became a participant, as the Respondent had failed to ensure that supports available to the Applicant were consistent and effective. It is evident that the Applicant has become hyper-focussed on the shortcomings of the Respondent and his somewhat unrealistic expectations of the NDIS. The following passage from the transcript provides one example (of a number) where the Applicant sought to explain his frustrations and link these to the review process:
“…my condition is a bit unwieldly and, when I feel threatened, I cling to systems of support and I have been guilty, as you have said, of my expectations being a little bit higher the agency’s requirements to fill certain gaps, but in my defence, there was no explanation to me about how this NDIS was to work, I’ve literally been flying through this program since day dot. My first LAC meeting with the planner I said, “I’ve got complex PTSD, can you please help me to come up with a plan?” The answer to that was simply, “No, we’re just the money.” So I’ve been navigating this as best I can with mixed information - mixed information providers telling me one thing, what will be supported one minute not the next, it is really complete and really confusing, so I apologise. Yes, I have been led to believe that we do certain things, and then I’ve now reformed that opinion, and views have changed. Because as I’ve gone along, I’ve understood more about what the limits are. It certainly doesn’t help when the legislation keeps changing…”[57]
[57] Transcript Day 2 (6 June 2023), p.23, lines 31-44.
Unfortunately, the Applicant’s expectations appear to have been fuelled by well-meaning but, at times, misinformed friends and family members. This does not appear to have assisted the Applicant to focus on his review rights. During the hearing, Mr Byrne stated that the Applicant had an expectation that funding would be available to address his mental health needs. However, Mr Byrne was not aware of the extent of the Applicant’s funded supports, nor that the level of funding in the decision under review was significantly greater than that previously provided in earlier plans. Ms Nihas, the Applicant’s cousin, gave evidence about shortcomings in the approach of the NDIA to the planning and delivery of supports and emphasised that her main concern, on behalf of the Applicant, was a need for the NDIA to improve communication and consistency. Neither of these well-intentioned and important supporters of the Applicant were aware of what particular supports might have been needed by the Applicant and, given the limited review task to be undertaken by the Tribunal in relation to the statement of participant supports, the evidence of these witnesses did not particularly advance the Applicant’s case.

The Respondent’s representative indicated that the Respondent acknowledged past difficulties with the relationship between the Applicant and the Respondent and wished to re-build this in the future. Given the long-term commitment of the Respondent to the Applicant, as a participant in the NDIS, this would seem essential in order for the Respondent to meet its statutory obligations to ensure that the Applicant is supported in his dealings and communications with the Respondent[58] and that, in exercising their right to choice and control, people with disability such as the Applicant are able to access a diverse and sustainable market for disability supports.[59]
[58] NDIS Act s.4 – General principles guiding actions under this Act, subparagraph 4(9).
[59] Ibid subparagraph 4(15).
The evidence before the Tribunal, relevant parts of which are discussed in more detail below, took as the starting point that the level of funded supports was to be at least at the level in the reviewable decision and that no funded support was unnecessary or excessive.
The remaining questions for the Tribunal, as to whether additional funded supports ought to be specific, will be answered by refence to the available evidence, and can conveniently be dealt with under the following categories:
(a)Accommodation supports;
(b)Supports for community access including support workers and trauma-informed yoga;
(c)Additional wellness supports – including exercise physiology and dietician;
(d)Capacity building supports, including psychology, occupational therapy and psychosocial recovery coaching;
(e)Supports for multidisciplinary meetings between allied health professionals;
(f)Support co-ordination;
(g)Transport
(h)Consumables;
EVIDENCE
The following evidence is relevant to the issue of the Applicant’s reasonable and necessary supports to be funded.
The Applicant
The Applicant stated that he wished to rely on the evidence of the expert witnesses in relation to his reasonable and necessary supports.
As to his accommodation-related supports, the Applicant stated:
I was looking to the NDIA to provide a framework of support, and Ms Lewis can talk to this, with particular face-to-face engagement with providers to help me overcome some of the barriers of trauma that are inhibiting me from finding stable accommodation.[60]
[60] Transcript Day 2 (6 June 2023), p.21, lines 33-36.
The Applicant drew attention to the NDIS pricing guides published from time to time and noted that the 1 July 2022 guide provided:
Assistance with Accommodation and Tenancy Obligations.
This support item is to guide, prompt, or undertake activities to ensure the participant obtains or retains appropriate accommodation. This may include assisting to apply for a rental tenancies or to undertake tenancy obligations in line with the participant’s tenancy agreement.
The Applicant gave the following evidence to explain his accommodation-related needs:
I’m not looking for the agency to pay for accommodation. I am very clear that that’s not what I am asking the NDIS to provide, but the assistance. And my therapist will speak to this tomorrow about the trauma-related disability things that go on in my mind around housing. It’s very complicated. My responses to housing are not ordinary and they specifically pertain to my psychosocial disability. I had a home once, Member, and I was having difficulty staying in that due to the fears of isolation. I don’t know where they were coming from at that time. So there’s nothing logical about what is happening in relation to that. It’s purely psychological and when I was trying to transition from staying with my sister into independent leaving, it was very clear earlier on that I was having a lot of problems with maintaining accommodation and stability of housing. And it does pertain to my disability.[61]
…
Well, the respondent maintains that I’m looking to the NDIS to resolve my issues of homelessness and I was simply looking for support to transition, through my trauma, with daily support and improved daily functioning and capacity building to enable that to happen for myself. So I just needed someone to go with me to look at places to live, basically.[62]
[61] Transcript Day 2 (6 June 2023), p.32, lines 24-38.
[62] Transcript Day 2 (6 June 2023), p.33, line 46 to p.34 line 4.
The Applicant provided an example of having received some such assistance:
Member, there has been attempts by Rhian Evans to secure accommodation, even temporarily, using my own funding and I had a lot of adverse problems transitioning when we tried to get to that point. So, it’s to do with my anxiety around it.[63]
[63] Transcript Day 2 (6 June 2023), p.37, lines 36-39.
The Applicant referred to a letter from Ms Lewis, his psychologist, in which she spoke about the necessity for this support by stating, “Paul specifically needs support workers who will sit him with face to face to work through accommodation options and support him with the steps involved with budgeting, et cetera.” The effect of his evidence was that he required support to ensure that his treatment, accommodation, friends and family were co-located in order to avoid feeling isolated and facilitate his recovery and support his treatment.[64]
[64] Transcript Day 2 (6 June 2023), p.39, to line 23; p.44, lines 1-5.
The Applicant’s evidence as to the need for separate funding for respite included taking a hotel room in Sydney, on advice from Ms Nassar, recovery coach, which did not assist him.[65]
[65] Transcript Day 2 (6 June 2023), p.39, lines 27-45.
The Applicant stated that the 90 days of medium-term accommodation funded currently was sufficient to meet that support need.[66] The Applicant’s concern that this support may not have been included in earlier plans, and may not be funded in future plans, is beyond the scope of this review. It is the Tribunal’s task to consider whether it is a reasonable and necessary support to be specified in the reconsideration of the decision to approve the Applicant’s statement of participant supports.
[66] Transcript Day 2 (6 June 2023), p.48, lines 37-42.
The Applicant stated that he was not seeking funding for respite, or short-term accommodation (‘STA’) as this had not been beneficial and had been expensive. He suggested that medium term accommodation was more beneficial. [67] He later explained that respite would be helpful, and he did wish for it to be funded.[68] He then stated:
Well, either or would be sufficient at this point. I would argue that probably MTA would be a bit more supportive because I could get back to the Northern Rivers and use my MTA whilst I work with recovery coaches or support workers to find suitable longer term accommodation[69]
…
The MTA would be preferred over respite and it would be a considerable cost saving to the agency, I believe, as well.[70]
[67] Transcript Day 3 (7 June 2023), p.104, lines 30-44.
[68] Transcript Day 3 (7 June 2023), p.105, lines 1-24.
[69] Transcript Day 3 (7 June 2023), p.106, lines 1-4.
[70] Transcript Day 3 (7 June 2023), p.106 lines 21-22.
The Applicant stated, during cross-examination, that he was not aware of the number of support worker hours funded in his plan. He did not give any evidence about whether additional hours were required and stated that he had not yet experienced the benefit of 42 hours per week (as funded) because he had not been able to locate support workers in his area to provide support for that number of hours. He also indicated he would defer to the expert evidence in terms of this support.[71]
[71] Transcript Day 2 (6 June 2023), discussion at p.47-48.
As to capacity building supports, the Applicant stated:
I was then looking to the agency to provide the capacity building, the daily functioning support that are pertaining to my plan to keep me safe until such a time as treatment could be sourced, found and secured and it’s in that that the detriment has been suffered.[72]
[72] Transcript Day 2 (6 June 2023), p.22, lines 2-6.
Ms Paula Lewis
Ms Paula Lewis has been the Applicant’s treating Clinical Psychologist since October 2019. Her letter dated 25 February 2022[73] addresses primarily the Applicant’s need for in-person supports, particularly to assist him in the location of accommodation. She also stated that the Applicant would greatly benefit for a period of respite care to help stabilise his condition.
[73] HB A1.A, p1.
Ms Lewis gave sworn evidence during the hearing to the following effect:
(a)It would be ideal if the Applicant could attend at a place for trauma treatment for six months where he was receiving care and his daily needs met but, as that doesn’t really exist, she instead recommended the Applicant receive periods of respite for a few weeks. Respite of up to three weeks about three or four times per year would be really helpful for the Applicant;
(b)Body work, massage and somatic touch are therapies that assist the Applicant to regulate;
(c)The Applicant requires help to step through finding accommodation, including finding accommodation suitable to his preferred location and budget, filling out necessary forms and moving in;
(d)Mr Pavlakis’ current level of funded supports in his plan is much more suitable than previous plans, as it allows for him to do yoga, horse-riding, and for 90 days of medium-term accommodation. However, it does not provide for short-term accommodation needed to transition towards living independently;
(e)Funding for 42 hours per week of support workers would be sufficient to meet the Applicant’s needs;
(f)If the Applicant were in stable medium-term accommodation with access to 42 hours per week of support work this may be as effective as respite or short-term accommodation in terms of being effective and beneficial to meet his needs.
(g)When the Applicant encountered workers or other people who are delivering supports, or had contact with the Respondent, where people do not have a good understanding of his needs and the skillset to communicate with him when dysregulated, this seeps back into his original trauma of being abandoned, misunderstood, people not following through with things and people being inconsistent.
(h)The currently funded hours for psychology supports, of two hours per week, were sufficient if this was inclusive of therapy and other somatic, “hands-on” work.[74]
[74] Transcript Day 3 (7 June 2023), p.133, lines 2-6.
Ms Hayley Bowers
Ms Hayley Bowers is an Occupational Therapist who prepared a letter dated 23 March 2023[75] outlining the Applicant’s current support needs. Ms Bowers also gave sworn evidence during the hearing.
[75] HB A1.B, p.3.
The supports recommended by Ms Bowers in her report, for a year-long period, can be summarised as follows:
(a)71 hours of occupational therapy
(b)Allied health professional therapy from a psychologist/counsellor, exercise physiologist, mental health-informed dietician
(c)Bi-monthly multidisciplinary meetings
(d)$1500 in consumables for low-cost items
(e)Support workers – 50 hours per week to be used flexibly on weekdays and weekends
(f)Medium term accommodation – 90 days
(g)Short-term accommodation/respite – 7 days per quarter (28 days annually)
(h)Transport
(i)Social participation, including community-based therapies such as social groups and trauma-informed yoga
(j)Support co-ordination
Ms Bowers gave evidence at the hearing in relation to each of these recommended supports. As to the longevity of the need for this high level of daily support, she stated that:
…this kind of day-to-day contact to promote some consistency and stability is really important for a person in a state of crisis. However, it is not anticipated that these recommendations would be required forever. But they would need to be in place to support that stability and then reassess in the future to see whether that could be reduced pending on Paul’s presentation over time.[76]
[76] Transcript Day 4 (9 June 2023), p.213, lines 28-33.
Ms Bowers stated that, although she had recommended 50 hours per week for support workers, she did not think it would make “too much difference” if the Applicant were instead funded for 42 hours per week, as currently funded.[77]
[77] Transcript Day 4 (9 June 2023), p.231, line 42 to p.232, line 7.
Ms Bowers opined that there was no basis, of which she was aware, to reduce the Applicant’s current funding of 100 hours per year for psychology and relayed that the Applicant appeared to be well-connected with his current psychologist. She recommended a total of 71 hours of occupational therapy. However, she accepted that both occupational therapy and psychology supports were addressing the same goals of the Applicant which included functional occupational therapy goals, intensive input to trial, sensory processing strategies, emotional regulation and ongoing psychosocial education. Ms Bowers opined that psychology and occupational therapy would “complement each other”.[78]
[78] Transcript Day 4 (9 June 2023), p.218, lines 1-3.
Ms Bowers stated in her report that the Applicant would benefit from a trauma-informed dietician, citing a strong link between mental health and lifestyle factors such as movement and nutrition[79] but explained, during the hearing, that it was beyond her expertise to recommend a specific number of hours, or appropriate frequency, for an area of allied health other than her own. Conscious of her perfectly reasonable approach in this regard, and in the absence of any express recommendation by a dietician as to the level of supports needed, Ms Bowers was prepared to give evidence about the frequency of dietician support she had observed in other multi-disciplinary teams she had experienced where the participant had psycho-social issues in the nature of those experienced by the Applicant. With her sensible caveat, Ms Bowers stated that monthly consultations would be a general expectation to support a person with mental health issues as part of a multi-disciplinary team.[80]
[79] Transcript Day 4 (9 June 2023), see p.220.
[80] Transcript Day 4 (9 June 2023), see p.227-8.
Ms Bowers stated in her report that the Applicant would benefit from access to an exercise physiologist, again based on the links between gut health and mental health[81] but, again, declined to recommend a specific number of hours, or appropriate frequency, for an area of allied health outside her own expertise. Ms Bowers noted that some sessions could be provided by a personal trainer, but that it was advisable that an appropriately qualified exercise physiologist oversee the Applicant’s care, taking a trauma-informed and evidence-based approach.[82]
[81] Transcript Day 4 (9 June 2023), see p.226-7.
[82] Transcript Day 4 (9 June 2023), p.224, lines 1-26.
Again, Ms Bowers was prepared to give evidence about the usual frequency of an exercise physiologist support she had observed in other multi-disciplinary teams where the Applicant had psycho-social issues in the nature of those experienced by the Applicant. With her sensible caveat, Ms Bowers stated that monthly consultation with a dietician would be appropriate.[83]
[83] Transcript Day 4 (9 June 2023), p.228, lines 15-32.
Without access to a chronic disease management plan Ms Bowers did not consider that either dietician or exercise physiology could be accessed through Medicare.[84] Following the evidence of Ms Bowers, the Respondent altered its position in respect of supports relating to capacity building from a dietician, exercise physiologist and occupational therapist, and for multidisciplinary meetings between the allied health specialists.
[84] Transcript Day 4 (9 June 2023), see p.221-2 and p.225.
Ms Bowers explained to the Tribunal that her understanding of short-term accommodation, or respite funding was to provide the Applicant with an opportunity to “let go, have a break, have support, to be able to maintain his level of function and promote increased functional capacity”[85] with an “established service provider”.[86] As to short-term accommodation, or respite, Ms Bowers was cross-examined about her recommendation of one week of respite on a quarterly basis to prevent high symptom acuity (a total of four weeks annually). She explained that “the recommendation around short-term accommodation is more as a prevention of [the Applicant’s] mental health deteriorating”.[87] Ms Bowers, having earlier noted that, unlike participants living in family situations, or in conventional accommodation, the Applicant was living in his car, explained the need for respite in the following terms:
So Paul doesn’t have those strong informal supports that I’m aware of at the time of assessment to be able to support him and relieve the psychological stress that comes with managing a life in this – you know, with all the things that have been going on. They’re stressors that impact everybody. Paul has had to take on all that mental load on himself as well as managing multiple professionals, managing his plan. I think it’s really important that he is allowed the opportunity to have a break, because, if he doesn’t have a break, he risks burnout, he risks falling into crisis, he risks hospitalisation.[88]
[85] Transcript Day 4 (9 June 2023), p.233, lines 30-38.
[86] Transcript Day 4 (9 June 2023), p.235, lines 1-9.
[87] Transcript Day 4 (9 June 2023), p.233, lines 5-18.
[88] Transcript Day 4 (9 June 2023), p.233, line 44 to p.234, line 7.
Ms Bowers did not consider that this support was duplicative of medium-term accommodation, when coupled with other supports, on the basis that the respite offered the opportunity for the Applicant to relieve his mental load, but that the Applicant would not require 42 hours per week or support workers for periods so long as he was similarly supported in respite, as this would amount to duplication.[89]
[89] Transcript Day 4 (9 June 2023), p.236.
Ms Rhian Evans
Ms Evans gave brief sworn evidence to the effect that she was the Applicant’s support co-ordinator and general practitioner from time to time between January and May 2022. She provided the following observations relevant to the Applicant’s support needs:
(a)Ms Evans worked to connect Mr Pavlakis with supports, liaising with providers, essentially trying to connect Mr Pavlakis to mainstream supports as well as NDIS supports.[90]
(b)Her understanding was that the role of the support co-ordinator was to match participants to supports that would be the most applicable support for their needs. The role of day to day supports would be undertaken by a support worker. For the purposes of finding accommodation for the Applicant, that is the sort of thing that a support worker would assist with.[91]
(c)Ms Evans did not consider that the communication protocol in place for the Applicant with the NDIA made her job harder, but she considered that it had a functional impact on the Applicant as it was triggering for him.[92]
(d)Some of the difficulties and challenges that Ms Evans observed in trying to access accommodation with the Applicant were that he could not even get past the threshold and it was very clear that the impact of his psychosocial disabilities was profound.[93]
(e)Ms Evans stated that barriers to the Applicant’s accessing of supports, even if funding for them existed, were the severity of the Applicant’s symptoms and the intensive amount of support that he requires, together with the limitation on providers with capacity to provide that, in an environment where the Applicant would feel safe enough to heal.[94]
(f)She observed that there may be challenges in finding a recovery coach who is able to work with the Applicant in a way that would result in a good working relationship and in some meaningful progress.
[90] Transcript Day 3 (7 June 2023), p.182, lines 39-41.
[91] Transcript Day 3 (7 June 2023), p.184, lines 20-27.
[92] Transcript Day 3 (7 June 2023), p.185, lines 10-22.
[93] Transcript Day 3 (7 June 2023), p.186, lines 7-19.
[94] Transcript Day 3 (7 June 2023), p.188, lines 22-29.
Dr Timothy Davidson

Dr Davidson gave brief sworn evidence to the effect that he has been the Applicant’s treating general practitioner from time to time between December 2018 and May 2022, incorporating in person and telephone consultations. He provided the following clinical background relevant to the Applicant’s support needs:
Paul has really quite a complex history psychiatrically that has been quite unresponsive to a lot of treatments in the past so and is quite a vulnerable personality requiring I guess quite complicated ongoing management but obviously the difficulty is, you know, for Paul is trying to get him engaged into the styles of treatments that will perhaps meet his needs that he requires and that’s been probably the most challenging aspect I think for Paul. You know is to tap into those resources. But I haven’t had a lot of contact, you know, with Paul in recent years so I’m not quite sure what he’s been able to do successfully but I certainly, you know, feel Paul really does - will benefit from ongoing support especially with treatments that, you know, he’s been exploring but, you know, I guess the challenge with Paul is actually I guess having some sort of ongoing continuity medically and psychiatrically.[95]
[95] Transcript Day 2 (6 June 2023), p.62, lines 34-45.
Dr Davidson described the challenges faced by the Applicant in accessing certain supports and therapies:
I think Paul’s situation is complicated enough he really does require a psychiatrist and it’s not that Paul hasn’t tried. In fact, Paul has reported repeated attempts trying to get help and seeing numerous psychologists and psychiatrists over the years but it’s I guess for Paul it’s been quite difficult because, you know, he - I guess part of his underlying traumas, you know, which relate to his childhood or more about how he feels I guess let down by others and not perhaps being understood and so it has been I think challenging for Paul to perhaps drop his guard to make it easier to engage with psychiatrists who perhaps aren’t immediately aligned with his impressions of the diagnosis and best management but I do think, as I said, there are lots of forms of trauma‑style therapy which Paul could benefit from. I think it’s been challenging because it’s trying to find styles of therapy that Paul will feel are likely to be helpful because he has tried lots of styles of therapy which perhaps in the past haven’t been greatly helpful which has made him a bit more sceptical about what he’s willing to try.[96]
[96] Transcript Day 2 (6 June 2023), p.64, lines 26-41.
Dr Arul Ravindran, Psychiatrist
Dr Ravindran gave brief sworn evidence to the effect that he was the Applicant’s treating psychiatrist during early 2019, incorporating four appointments and further contact via a pager number. He provided information about cognitive behaviour therapy, stating that this was “typically … time limited” and had not provided sustained benefits for the Applicant, therefore leading him to look at different modalities for treatment. Dr Ravindran also stated that recovery-based therapies, like the trauma informed yoga and similar were not covered by Medicare.
Mr Paul Byrne
Mr Byrne is a long-term friend of the Applicant and has had some first-hand opportunities to observe his interaction with planners from the NDIA. He gave evidence to the effect that failures in the co-ordination of services had caused detriment to the Applicant.[97] Mr Byrne observed that services that had been funded from his plan had not been “professionally provided”.[98]
[97] Transcript Day 1 (23 May 2023), p.31, lines 13-44, p.32, lines 37-47.
[98] Transcript Day 1 (23 May 2023), p.35, lines 23-31.
The theme of the evidence of Mr Byrne was that the Applicant had felt that the NDIS had let him down. In relation to the Applicant’s concerns, as expressed to Mr Byrne, he stated: “I believe he has an expectation that the NDIS and the funding would be there to support him in his mental health recovery, and that is not happening”.
Ms VasiloNihas
Ms Nihas gave sworn evidence to the effect that she is the Applicant’s cousin and became involved in his contact with the NDIS during a mental health crisis experienced by the Applicant in about March or April of 2022. She indicated that her main ground for concern on behalf of the Applicant related to communication and consistency from the NDIA.
Ms Nihas observed that the Applicant benefitted most from support delivered in person, face-to-face. She stated:
Look, I actually think Paul needs an enormous amount of face-to-face support, and I acknowledge that that’s very difficult for an agency to deliver, but it is actually what he needs. He has such trauma from abandonment particularly, I think, that even if you were discover the organic causes and even only just focus on that, there is a huge issue that relates to abandonment. So it makes him need a lot more face to face, I suspect, than a lot of people do, and that sometimes can be frustrating. The problem is that often the services just aren’t there. His - you know, the NDIS operates as a broker in many ways in order to provide services, but if the services aren’t there, with all the best will in the world and the good intent, the result and the outcome that you want doesn’t happen[99]
[99] Transcript Day 3 (7 June 2023), p.152, lines 3-14.
Documentary evidence
The following information was provided to the Tribunal without the authors of the documents being called to give evidence. This evidence is therefore unchallenged by the Respondent.
Mr Colin Ryan, occupational therapist, prepared a report dated 6 October 2022[100] outlining the Applicant’s immediate need for medium term accommodation.
[100] HB R1, p.319.
Ms Mia Radulvoic, support co-ordinator, Nextt Group, prepared a progress report dated 27 January 2022.[101] She noted that the Applicant had:
(a)elected to discontinue the services of Nextt Group after numerous attempts to meet his goals;
(b)requested daily face to face contact for numerous hours a day;
(c)set initial goals of sourcing a Psychosocial Recovery Coach and private rental accommodation;
(d)cancelled a meeting with a psychosocial recovery coach due to perceived lack of responsiveness from the provider, and declined a new provider;
(e)not pursued potential rental properties because he had changed his goals to wanting to travel to Europe and pursue treatment involving MDMA and Psilocybin; and
(f)Sent excessive communications via email noting frustrations with lack of progress with service providers.
[101] HB R1, p.294.
Ms Radulvoic recommended that the Applicant attend a residential treatment program from which he could be discharged into the community with supports already in place for continuity of care.
During the hearing, the Applicant was somewhat critical of the services provided by Ms Radulvoic, stating that she provided the number for a Psychosocial Recovery Coach who did not show up to scheduled meetings, and provided a link to a real estate website by way of rendering accommodation assistance and denied that he had changed his goals as suggested in her report.
Ms Abby Brown, support co-ordinator, Jeder Institute, prepared a progress report dated 26 April 2022[102] after commencing services on 29 March 2022. She noted that the Applicant had since terminated the services of Jeder Institute. She made the following observations in relation to the Applicant accessing supports:
(a)The Applicant had declined a referral to the local homelessness services. Recommended to explore local websites for shared accommodation options. Two real estate applications rejected.
(b)Recommended supports to achieve the Applicant’s goals were psychology, occupational therapy, support workers with experience in psychosocial disability, psychiatrist, GP, Department of Communities and Justice and disability employment support. However, she noted that the Applicant declined the DCJ referral as he felt he did not need social housing, and also declined a referral to the “Connecting Home” service.
[102] HB R1, p 313.
The Applicant strongly disagreed that the person in the role of support co-ordinator could assist him with accommodation options going forward, and that Ms Brown’s report was suggestive of that conclusion.[103] He could not recall the rejected real estate applications.
[103] Transcript day 3 (7 June 2023), page 99, lines 1-3.
Hollie Nassar, psychosocial recovery coach, prepared a report dated 3 September 2021.[104] She described some of the work she undertook with the Applicant, including the following extract:
On Wednesday 28 July, Paul checked in an Airbnb in Gosford where he asked me to set up services and planned to stay there for a few weeks to rest and recover as he wanted to move away from (indistinct) wasn’t sure where he wanted to live. I set up daily support workers to accompany him on a walk, providing company and exercise. A psychologist was established that could provide face-to-face meeting, an exercise physiologist and yoga classes which were specific for PTSD. He also received daily calls from acute care team. This support helped him for a week until he again went back into crisis in feeling unsafe sleeping in his car, flowing from anxiety, saying that affordability and abandonment issues were consuming him. All he could focus on was homelessness and unsupportive environments.
[104] HB R3.E, p.508.
The Applicant disagreed that the person in the role of psychosocial recovery coach could assist him with accommodation options and connecting with services, and that Ms Nassar’s report was suggestive of that conclusion and stated that the relevant context was lost in her report. [105] He later accepted that she was a resource that could connect him with services including, potentially, respite or other accommodation services.[106]
[105] Transcript day 3 (7 June 2023), page 102, lines 32-37.
[106] Transcript day 3 (7 June 2023), page 103, lines 17-18.
Other hospital records, correspondence and reports that were either older and therefore of less assistance or not directly relevant to the issues for determination.
CONSIDERATION
The Tribunal notes that the Applicant’s current rate of expenditure on funded supports is consistent with the Applicant having adequate funding for the utilisation of presently funded supports until the scheduled review date. The preponderance of the evidence about support worker hours was that the currently funded 42 hours weekly for support workers was sufficient. Ms Bowers had recommended 50 hours per week but the Applicant, Ms Lewis and, in a qualified way, Ms Bowers all accepted that 42 hours per week would meet the Applicant’s reasonable and necessary support worker needs and would allow him time to undertake other therapies and connect with his community. The necessity for an adjustment from 52 weeks to 48 weeks per year of support worker funding is explained below. As to the other supports where it is necessary for the Tribunal to arrive at a conclusion, the Tribunal makes the following observations.
Accommodation support
The Applicant is homeless and sleeps primarily in his car, although he is sometimes accommodated by friends for short periods. He does not contend that he meets the criteria for specialist disability accommodation and the evidence does not demonstrate that he would meet the significant evidentiary standard required. The Applicant instead submits that insufficient support is provided to him to locate and maintain a tenancy. The Tribunal accepts that the Applicant’s significant mental health impairments are a barrier to both locating and maintaining a tenancy, and that it is reasonable and necessary that funded supports assist him in these tasks. The Tribunal finds that his funded supports are adequate to meet this reasonable and necessary support need.
The Applicant has engaged various support co-ordinators over time. These support co-ordinators have, during their tenure as the Applicant’s provider, sought to connect the Applicant with accommodation and related services. His crisis recovery coaches, which are funded through flexible core funding in the Applicant’s plan, have also provided support to the Applicant in this regard. The Applicant accepts that it is not the role of the NDIS to meet his living expenses, such as rent, or to ensure that suitable accommodation is available but states that his supports have not done enough or been sufficiently effective in assisting him. To the extent that the Applicant’s capacity to find accommodation is disability-related, he has access to an ample budget to engage supports to assist in his search and in maintaining his tenancy.
The Applicant’s situation has become complicated by his inability to retain a support co-ordinator and crisis recovery coach. The documentary evidence demonstrates that he has terminated the service of some of these supports, and others have indicated that they are no longer available to work with the Applicant. Again, the continuity of provided supports is an issue which is beyond the scope of the Tribunal on review.
The Applicant’s funded supports include provision for 90 days of Medium-term accommodation (MTA). The relevant Operational guidelines as to the use of MTA were provided in the Tribunal Book[107] and include the following statements:
[107] HB R7, p.556-557.
(a)Medium term accommodation is one of the home and living supports we may fund. It’s funding for somewhere to live if you can’t move into your long term home because your disability supports aren’t ready.
Funding for medium term accommodation
(b)We usually fund medium term accommodation as a once-off support.
The Respondent submitted that MTA was a reasonable and necessary support. Funding for 90 days of MTA is specified in the reviewable decision, but no allowance is made in the Applicant’s existing plan for Short-term accommodation (STA) or “respite”, as the Respondent submitted were terms to be used interchangeably. The Respondent submitted that there was insufficient information to demonstrate that STA was a reasonable and necessary support for the Applicant.
Relevant Operational guidelines as to the use of STA were provided in the Tribunal Book[108] and include the following statements:
(a)Short term accommodation may suit your needs if your usual support network isn’t available.
(b)If you already have funding in your Core budget, you can use this for short term accommodation.
[108] HB R7, p.556-557.
The Applicant’s evidence disclosed a history of the Applicant having been able to use his funds for STA on some occasions, but not others. The Tribunal does not have access to the details of all of the Applicant’s earlier plans but notes that STA was not expressly provided for in the May 2022 plan nor in the October 2022 plan that led to this review. Medium term accommodation of 90 days annually was included from October 2022.
Despite this, the Applicant’s evidence was consistent with having been permitted to use funds on short-term accommodation for the purpose of attending staffed respite accommodation where he could access support services. He stated that, when he arrived, the promised support services were not available. It is noteworthy that the Applicant stated that this had been detrimental to his health and that, as a result, he sought to connect the Respondent to the detrimental health impact. Whilst not directly relevant to this review, this kind of focus upon the Respondent as the architect of detrimental impacts upon the Applicant’s mental health has made more challenging the task of identifying what reasonable and necessary supports would actually assist the Applicant to meet his goals and address his disability-related needs.
The Tribunal notes that the inconsistency does appear confusing, and the Respondent had an opportunity to provide information to explain the inconsistency in approach, but did not do so. The operational guidelines are so confusing that they are likely to be of little assistance in interpreting whether a support should be funded. The determinative factor is whether this support should properly be funded having regard to section 34 of the NDIS Act and the Support rules.
STA was recommended by Ms Bowers as a reasonable and necessary support. During the hearing Ms Bowers’ evidence indicated that this type of supported respite accommodation was required to provide the Applicant with an opportunity to have a break from the management of his own conditions and supports and noted that, “if [the Applicant] doesn’t have a break, he risks burnout, he risks falling into crisis, he risks hospitalisation”.[109] Ms Lewis gave consistent evidence of the need for respite about three or four times per year, and stated that up to three weeks at a time would be “really helpful”.
[109] Transcript Day 4 (9 June 2023), p.233, line 44 to p.234 line 7.
A balance is to be struck between ensuring that the Applicant’s support worker structure is maintained and providing both those formal supports and the Applicant himself with reasonable respite to avoid burnout and crisis. Although Ms Lewis recommended between nine and twelve weeks of respite a year, the Tribunal is concerned that this may disturb the Applicant’s regular and stable routine. In arriving at this conclusion, the Tribunal is mindful of the evidence of the Applicant about past negative experiences with respite.
The Tribunal accepts the evidence of Ms Bowers that the provision of STA was not duplicative of medium-term accommodation, because respite offered a different support, but the Tribunal notes that the number of support worker hours would require adjustment (by removing 42 hours of support worker funding for each week of STA funded) to avoid duplication as the Applicant would be similarly supported in a respite facility.
Having regard to this evidence, the Tribunal concludes that STA is a reasonable and necessary support, and whilst more than four weeks of respite could be “helpful”, four weeks annually is sufficient to meet the necessary respite needs of the Applicant. The statement of participants supports should therefore specify STA funded for four weeks and support workers for 42 hours a week for 48 weeks (not 52 weeks) annual to ensure no duplication of supports.
Supports for community access including support workers and trauma-informed yoga and additional wellness supports
The Applicant stated that he had benefitted from a local yoga class that provided both physical therapy to support his mental health and community interaction and participation. The evidence of both Ms Bowers and Ms Lewis supports the need for body work and somatic therapies by a trauma-informed therapist and Ms Bowers expressly noted the “substantial therapeutic effect of participating in yoga”[110] and recommended that the Applicant participate in yoga once per week in a face-to-face (and not on-line) class setting.[111]
[110] Transcript Day 4 (9 June 2023), p.239, line 46 to p.240 line 15.
[111] Transcript Day 4 (9 June 2023), p.240 lines 30 – 47.
The reviewable decision, as remade on 14 June 2023, includes increased capacity building in the amount of $4,999.72 which can be used flexibly to include funding for yoga classes. The Respondent noted that this additional wellness supports budget was sufficient to include funding for a dietician (8 hours) and an exercise physiologist (12 hours). Use of this flexible funding for yoga may necessarily mean that the Applicant may not be able to access the full hours allowed for those two other supports, but the Tribunal must be mindful to ensure that the funding specified is necessary, but no more than necessary, and does not duplicate existing supports. Subsection 33(5)(f) of the Act provides that the effectiveness of the Applicant’s experience with the funded supports determined by the Tribunal on review to be specified in his statement of participant supports is to be considered by the CEO on re-assessment. The Applicant’s utilisation of wellness supports is something that can be explored during that re-assessment process to determine whether higher, lower of the same level of capacity building supports is required for the Applicant, and this may change again over time. As sufficient funding is specified in the reviewable decision it is not necessary for the Tribunal to further consider this support.
Psychology and occupational therapy

The reviewable decision provides for funding for the Applicant to consult with his psychologist twice per week. At the time of the hearing he was consulting with Ms Lewis once per week. Provision was also made for a full occupational therapy assessment but not for ongoing occupational therapy treatment. Ms Bowers recommended that provision for occupational therapy of one hour-long session per week be provided for the Applicant.[112]
[112] Ms Bowers made other recommendations in her report, but provision was made for report-writing in the original decision and provision has now been made for multi-disciplinary meetings in the decision remade on 14 June 2023.
The Respondent submitted that the 100 hours of therapy budget already provided could be used flexibly for occupational therapy and psychology. The Tribunal notes the evidence set out above to the effect that the Applicant could benefit from up to two sessions per week with Ms Lewis, but also notes that funding at this level has been available since October 2022 and was not being utilised at that rate. The Tribunal finds that the flexible funding puts into the Applicant’s hands sufficient choice and control with respect to these therapies and that he may access his psychologist and an occupational therapist for a total of 200 hours annually and elect which mix of support suits him from week to week. The Tribunal is satisfied that funded therapy supports at this level, but no higher, are reasonable and necessary to support the Applicant’s disability-related needs. As sufficient funding is specified in the reviewable decision it is not necessary for the Tribunal to further consider this support.
Supports for multidisciplinary meetings between allied health professionals
The reviewable decision, as remade on 14 June 2023, includes funding for multi-disciplinary meetings to allow the Applicant’s care team to confer three times per year. This support is a helpful and necessary adjunct to the funded supports for those allied health specialists (exercise physiologist, dietician, psychologist and occupational therapist) and may result in a more efficient use of the related funded supports. As sufficient funding is now specified in the reviewable decision it is not necessary for the Tribunal to further consider this support.
Support co-ordination and psychosocial recovery coaching
The Applicant had access to funding in his existing plan which is flexible and can be used for counselling, crisis recovery coaching and psychology services. He also has access to support co-ordination. The levels of funding are generous and were not seriously questioned by the expert witnesses. The anecdotal experience of the Applicant suggests that the “mix” of these supports has not always been effective, but that this had more to do with the individual occupying the role, his personal connection to that individual and his circumstances at the time than any shortfall in funded supports. The funding for level two and level three support co-ordination and for psychosocial recovery coaching should reflect that in the reviewable decision. As sufficient funding is specified in the reviewable decision it is not necessary for the Tribunal to further consider this support.
Transport
The Applicant has access to his own car and is able to use it to drive within the community and to access his supports as needed. He has relocated on various occasions to improve access to supports and was able to do so under his own steam. There is insufficient evidence before the Tribunal that would support the need for transport funding for the Applicant that is related to his disability and that is both necessary and reasonable.
Consumables
The Respondent submitted, and the Tribunal accepts, that funding for consumable or low-cost assistive technology should be provided only after an appropriate assessment of the Applicant’s ongoing needs is finalised and evidence is available. Whilst the evidence of Ms Bowers touched upon certain low-cost items that might assist the Applicant, some were in the nature of personal expenses and others were described by the Applicant as not important to him. The Tribunal is not satisfied that there is a sufficient evidentiary basis to specify additional funding for consumables.
Conclusions as to supports
The Tribunal has concluded that the Applicant’s approved statement of participant supports should specify the following supports:
a)Funding for Short-term Accommodation for four weeks per annum;
b)Funding for support workers for 42 hours per week for 48 weeks (a reduction from 52 weeks) per annum; and
This is a prospective change to current support arrangements and therefore the date of effect of this specification is the date of this decision. The reasonable and necessary supports otherwise specified in the reviewable decision should be replicated until the reassessment date.
Management of funds
The plan management arrangements in the decision under review provide for funds to be Agency-managed. The Applicant had requested self-management of his plan, and this was resisted by the Agency on the basis that the Applicant faced the real prospect of material financial harm.
During the hearing the Applicant submitted that plan management of his funds was “working well” and that he no longer wished, at present, to self-manage his funds but also did not want any part of his funded supports to be managed by the Respondent.
The Tribunal is mindful of the principles relating to plans, contained in section 31 of the NDIS Act, including those providing for the maximising of choice and independence of the participant (section 31(i)), and for management of funds to be directed by the participant (section 31(b)). As the Applicant wished the majority of his funds to be plan managed it is appropriate to take this choice into account.
The Respondent submitted that Agency-management was appropriate for the financial management of the plan together with two funded supports, Level 3 (specialist) support co-ordination and psychosocial recovery coaching. The Tribunal notes that the Applicant is also funded for some Level 2 support co-ordination, funding for which is plan-managed. The Respondent accepted that this is appropriate to allow for a greater choice of day-to-day support co-ordinators and contended that Agency-management was necessary only for the more specialist, more highly remunerated, Level 2 support co-ordinator for the Applicant, together with his psychosocial recovery coaching. As to the management of those two funded supports, the Respondent submitted:
Those two roles play a significant role in providing wraparound services to vulnerable participants who are in psychosocial recovery. And so the agency considers that providers of these supports must be adequately qualified to assist a participant in their psychosocial recovery. And by having these supports agency managed this will ensure that providers are registered with the NDIS Quality and Safeguards Commission and have a minimum level of qualification.[113]
[113] Transcript Day 2 (6 June 2023) p.6, lines 33-39.
An Agency-managed support can be provided only by a service provider registered with the NDIS Quality and Safeguards Commission, as opposed to being an unregistered provider. There is no mechanism to ensure this outcome other than Agency-management of the relevant support. The Applicant raised two concerns about Agency-management:
(a)Limiting his pool of available support to those who are registered service providers would impact his capacity to locate and utilise an appropriate and effective specialist support co-ordinator and psychosocial recovery coach; and
(b)The Agency could not be trusted to manage anything and would arbitrarily refuse line items for requested supports if it were permitted to have any involvement in the management of his funded supports.
As to the first of those concerns, a balance is to be struck between choice and control of the Applicant and the delivery of appropriate supports through funds provided by the Respondent. The Applicant is free to choose both registered and non-registered service providers in all other aspects of his funded supports but, if Agency-managed, the substantial hours of specialist support co-ordination and psychosocial recovery coaching would need to be provided by those selected from the smaller pool of registered providers. Given the evidence before the Tribunal about various short-lived appointments, and regular turnover, of his providers of specialist support co-ordination and psychosocial recovery coaching, it is appropriate that the standard of providers for these supports be as regulated as possible. The stipulation of Agency-management to ensure registration is the only mechanism available to the CEO, and the Tribunal in its place, to maintain this regulation. The Tribunal accepts the Respondent’s submissions that, in relation to the circumstances of this particular participant, Agency-management of these funded supports is an appropriate protective measure.
As to the second issue, there is no evidence before the Tribunal to support the contention that Agency-management of the budget for a particular support would provide the Agency with any control over the way in which the entity delivering that support carried out its duties and functions. Agency-management of support co-ordination provides the sensible safeguard that ensures that the service provider maintains the standard required of a registered service provider and is not responsible for their own remuneration. It is unclear how any greater level of impact or control could be exercised by the Agency over the decisions made by the support-co-ordinator as a result of funding for that support being Agency-managed when compared with funding for that support being plan-managed. There is no evidence of any connection between the management of this cost and the discharge of the support-co-ordinators functions, other than ensuring that the support-co-ordinator is not over-charging for services. Similarly, there cannot sensibly be said to be any connection between Agency-management of psychosocial recovery coaching and any control by the Agency of the approval of other supports (apart, again, from ensuring that the coach is not over-charging). This is a protective measure in the Applicant’s interests and is a conventional approach for the (comparatively) high cost of specialist support co-ordination and psychosocial recovery coaching.
The Tribunal is therefore satisfied that the appropriate method of management of the funds be plan-management of all funds, other than the (specialist) support co-ordination and psychosocial recovery coaching together with the financial control aspects of the funded supports which ought to be managed by the NDIA. These arrangements are reflected in the decision under review.
Re-assessment
The decision under review (as remade on 14 June 2023) identifies a re-assessment date of 13 June 2024. Preparation of the statement of participant supports is to be undertaken “with” the participant before it is approved “by” the CEO in the proper discharge of that statutory function (section 33(2) of the Act) and to ensure that the Applicant is able to exercise choice and control in the pursuit of this goals and the planning and delivery of his supports.[114] The Tribunal considers that the Applicant would benefit from consultative planning and re-assessment of his needs before his next statement of participant supports is prepared with him and approved by the CEO. The communication protocol which had, in the past, prevented certain types of communication that may have been facilitative of this process has now been lifted and this will enhance the consultation process. There are a number of supports mentioned by the Applicant, but not supported by evidence before the Tribunal, which could be considered in more detail by the Agency if supporting evidence is obtained and the Applicant’s service providers consulted.
[114] NDIS Act s.118(1).
The re-assessment date can be reconsidered on review, and on reconsideration by the decision-maker, to take account of the effluxion of time since the CEO originally exercised power under section 33(2). However, bearing in mind that a decision resulting from either such process has the effect of replacing the reviewable decision (and not creating a new plan) there is no basis upon which the start date, or date of effect, should automatically slide forward as well in a way that may, effectively, delete a participant’s entitlement to funded supports if those should have been specified by the CEO at the time of the original decision.
The Tribunal finds, therefore, that the decision under review, which is the operable approved SPS with effect from 24 October 2022 as reconsidered in accordance with the 14 June 2023 decision, is to be re-made having regard to the directions specified in the Tribunal’s decision, and finds that it is proper for the re-assessment date to remain 13 June 2024.
Decision
The decision under review is set aside and the decision is remitted for reconsideration with a direction that the Applicant’s approved statement of participant supports specifies:
a)From the date of this decision, funding for:
a.Short-term Accommodation for four weeks per annum; and
b.42 hours per week for 48 weeks per year of support worker funding (a reduction from 52 weeks); and
b)That the reasonable and necessary supports otherwise specified be replicated until the reassessment date of 13 June 2024.

I certify that the preceding 132 (one-hundred and thirty two) paragraphs are a true copy of the reasons for the decision herein of Senior Member K Buxton

.......[sgn].................................................................
Associate
Dated: 10 August 2023

Date(s) of hearing: 23 May 2023, 6, 7, 9 June 2023

Applicant:
Paul Pavlakis

Solicitors for the Respondent: Subasha Prasad, Lucinda Taylor

Date(s) of hearing:	23 May 2023, 6, 7, 9 June 2023
Applicant:	Paul Pavlakis
Solicitors for the Respondent:	Subasha Prasad, Lucinda Taylor