Pettit and National Disability Insurance Agency
[2022] AATA 272
•18 February 2022
Pettit and National Disability Insurance Agency [2022] AATA 272 (18 February 2022)
Division: NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2021/2232
Re:Edward Pettit
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Member W Frost
Date:18 February 2022
Place:Canberra
The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975.
..........................[sgd]..................................
Member W Frost
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access to the scheme – assessment of reasonable and necessary supports – private tutoring – appropriate funding – purpose of the scheme – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 s 43(1)(a)
National Disability Insurance Scheme Act 2013 ss 3, 4, 17A(3), 25(3), 33, 34(1), 34(2), 35(1), 100, 103, 209(1)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 cls 3.5, 5.1(b), 5.1(c), 7.13, 7.14, 7.15, 7.16
Cases
McGarrigle v National Disability Insurance Agency (2017) 252 FCR 121
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
National Disability Insurance Agency v WRMF [2020] FCAFC 79
Madelaine and NDIA [2019] AATA 4025
Young and National Disability Insurance Agency [2014] AATA 401
YPRM and National Disability Insurance Agency [2016] AATA 1023
Secondary Materials
NDIA Operational Guidelines – Planning
REASONS FOR DECISION
Member W Frost
18 February 2022
INTRODUCTION
The Applicant, Mr Edward Pettit, is 19 years old and completed secondary school in 2020. Mr Pettit has been diagnosed with right facial hypoplasia, extensive right cerebral malformation with closed lip schizencephaly, polymicrogyria and periventricular nodular heterotopia, refractory focal epilepsy and epileptic spasms and mild intellectual disability.[1]
[1] Exhibit 1, T3, page 17; Exhibit 2, ST8, page 26.
Mr Pettit applied for access to the National Disability Insurance Scheme (NDIS) and his plan was approved in October 2020.[2] In January 2021, Mr Pettit’s mother requested his plan be reviewed and stated that he required continuing ‘mentoring’ from his current provider, Ms Sandi Love of Unlimited Potential Tutoring, in the form of twice weekly tutoring in literacy and numeracy. It was explained that this mentoring was required for Mr Pettit to ‘assist with being in the work force’.[3] Mr Pettit also requested funding for personal training, but this claim was not advanced in this proceeding given the nature of the funding provided under his NDIS plan.
[2] Exhibit 1, T17, pages 70-78.
[3] Exhibit 1, T12, page 58.
In March 2021, under section 100 of the National Disability Insurance Scheme Act 2013 (NDIS Act), a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (NDIA) decided that the original decision was correct. It was found that the support provided by Ms Love duplicates supports available and funded under Mr Pettit’s plan through School Leaver Employment Supports (SLES). In April 2021, pursuant to section 103 of the NDIS Act, Mr Pettit applied to the Administrative Appeals Tribunal (Tribunal) for merits review of the NDIA’s decision.[4] The Tribunal has considered all documents filed and taken into evidence in this proceeding and, for the following reasons, affirms the reviewable decision. As a result, Mr Pettit’s request for the NDIA to fund tutoring in literacy and numeracy is unsuccessful.
[4] Exhibit 1, T1, pages 1-4.
ISSUE
The Tribunal must decide whether funding of twice weekly tutoring for Mr Pettit in literacy and numeracy is a reasonable and necessary support under the NDIS Act.
BACKGROUND
Mr Pettit’s epilepsy began when he was 20 months old.[5] His development was a concern from an early age. Mr Pettit’s ‘speech acquisition milestones were delayed’.[6] In preschool, Mr Pettit received occupational and speech therapy and a neuropsychological assessment at age 9 ‘suggested mild intellectual disability’.[7] In 2017, when he was in year 9 at school, Mr Pettit had the support of an ‘integration aide’ for 4 to 6 hours each week, had a separate learning plan and had ‘recently started to read’.[8]
[5] Exhibit 1, T3, page 17.
[6] ibid., page 18.
[7] ibid.
[8] ibid.
Also in 2017, Mr Pettit, aged 15, was referred for a further neuropsychological assessment. Dr Silvana Micallef, Senior Clinical Neuropsychologist, relevantly reported that:[9]
He has received integration aide support within the mainstream setting throughout his schooling. He is currently in Year 9. For the last two years, he has been in receipt of individual tutoring support at home, which has been beneficial. According to Kate, Edward “still can’t read” (his reading is at “kinder” level), and he has generalised learning difficulties. He missed a significant amount of schooling last year as he was unwell (with extreme fatigue/lethargy and feeling sick/vomiting); a clear cause was not found…
Cognitive testing in 2010 (at age 8) indicated the presence of a mild intellectual disability (using the WISC-IV). Subsequent neuropsychological assessment in 2011 revealed difficulties with working memory, executive functioning, and academic achievement.
…
Edward presented as a cooperative examinee of modest intellect. He had poor clarity of speech and his output was grammatically delayed. Receptively, he required simplification of instructions. Eye contact was fleeting.
Functional and psychometric indicators point to the presence of an intellectual disability of mild-to-moderate severity…On measures that are scaled in the same fashion as the IQ indices, indicators of literacy and numeracy attainment fell between a 5 to 6-year old equivalent level (Reading = 40; Spelling = 41; Arithmetic = 41)…
Opinion
The current assessment has confirmed the presence of an intellectual disability of a mild-to-moderate severity. His surrounding cognitive and academic performances are broadly commensurate with his intellectual background.
[9] Exhibit 1, T4, pages 22-23.
In May 2018, a School Psychologist Psycho-Educational Report prepared by the ACT Education and Training Directorate, stated that since Mr Pettit commenced secondary school in 2015, he ‘qualified for Inclusion Support under Intellectual Disability criteria’ and had received ‘ongoing support including having extra staff work with him for about several hours each week’.[10] The report concluded that Mr Pettit ‘meets the DSM-5 criteria for an Intellectual Disability with mild impairment’[11] and relevantly stated as follows:[12]
Edward’s current supports include that he has an Individual Learning Plan (ILP) that outlines his long and short terms goals for learning which drive differentiation in the classroom in all learning activities. Edward requires one to one or small group instruction, questioning and prompting to complete all tasks. He requires constant reminders when completing tasks in order to finish and often requires extra time…
Expectations for Edward are based off his ILP rather than the year 10 curriculum as he is working at a much lower level than the other students and this is adjusted in all classes.
[10] Exhibit 1, T6, page 31.
[11] ibid., page 38.
[12] ibid., pages 31-
In June 2018, Professor Ingrid Scheffer, Paediatric Neurologist and Epileptologist, provided a report regarding Mr Pettit’s epilepsy, which relevantly noted that:[13]
He has a little bit of aide time. He enjoys school and likes the gym. Next year he will attend Dixon College from year 11 to 12 but Kate feels they have not been successful in getting any aide time. We will give them a copy of the neuropsychological assessment from last year which shows that he has a mild to moderate intellectual disability with a full scale IQ of 55. His literacy and numeracy attainments fell between a 5 to 6 year old equivalent age group. I indicated that Kate should give this to the school to help them ensure they obtain classroom assistance.
[13] Exhibit 1, T7, pages 41-42.
In July 2020, an Executive Teacher at Mr Pettit’s high school provided a letter noting that he was then enrolled in the Learning Support Unit, which ‘provides him with heavily scaffolded and supported learning activities’.[14] He attended classes with no more than 8 students per teacher and the curriculum was designed to ‘extend his skills at his academic level, which is below the academic range of his age peers in mainstream classes’. The letter further stated that:[15]
Eddie is unable to read and write independently and needs support to understand, clarify and begin tasks. However, Eddie has excellent help seeking skills and a cumulative memory meaning he can work reasonably independently on practiced tasks, asking for help when needed…
Eddie has basic number skills and enjoys experiential and real life applications of math but needs rehearsal for reinforcement. Once Eddie has embedded the concept he can quickly become proficient, even seeking to assist others.
[14] Exhibit 1, T9, page 44.
[15] ibid.
In August 2020, Mr Pettit applied for access to the NDIS, which he was granted in October that year.[16] The Access Request Form signed by Mr Pettit noted that he needs assistance from other people with communication, learning and self-management.[17] This was further described as being ‘reading and writing communication only’, guidance and supervision or prompting in relation to learning and guidance with handling money.
[16] Exhibit 1, T11, pages 47-55; T17, pages 70-78.
[17] Exhibit 1, T11, pages 53-54.
The NDIA issued Mr Pettit’s NDIS first plan with a start date of 1 October 2020.[18] The plan included an amount of $30,094.89 for capacity building supports, including $5,819 for ‘an allied health professional or therapist to assess and provide support in assisting you to meet your goals of communication’ and $22,789.44 in funding for School Leaver Employment Supports (or SLES) ‘to assist you transition from school into employment’.[19] SLES is said to help participants who have ‘recently left school improve abilities including money handling skills; time management skills; communication skills; discovery activities; work experience; job ready skills; travel skills; and personal development skills’.[20]
[18] Exhibit 1, T17, pages 66-78.
[19] ibid., pages 76-77.
[20] Exhibit 1, T2, page 14.
In January 2021, Mr Pettit requested a review of his NDIS plan.[21] It was stated that Mr Pettit ‘requires mentoring from his current provider, Sandi Love – Unlimited Potential for life skills. He has been receiving this for a few years and needs this support for 3 hours per week’.[22] Additionally, it was said that ‘having left school he requires this mentoring to assist with being in the work force’.[23]
[21] Exhibit 1, T12, pages 56-60.
[22] ibid., page 58.
[23] ibid.
As previously stated in these reasons, a delegate of the NDIA CEO refused Mr Pettit’s request for ‘life skills training’ from Ms Love because it found that it duplicated supports available in his NDIS plan through SLES.[24]
[24] Exhibit 1, T2, page 14.
An undated letter from Ms Love stated that she had been providing Mr Pettit with tutoring services for two and a half years and that Mr Pettit ‘is challenged in reading and mathematics, currently reading at a Grade 1 – 2 level, and Grade 2 – 3 for mathematics’.[25] She said that Mr Pettit is ‘extremely committed’ and has ‘progressed at an exceptional rate’. Ms Love further stated that her tutoring of Mr Pettit comprised: understanding and use of phonics to decode and understand words; use of phonetic system of reading, understanding numbers, relationships of numbers; and basic numerical functions such as addition and subtraction.
[25] Exhibit 1, T16, page 65.
In a further letter dated 13 July 2021, Ms Love confirmed that she had been tutoring Mr Pettit since 2018 and that he was ‘currently undertaking both literacy and numeracy tuition to provide him with a level of education that means he can undertake steady employment and live independently’.[26] Ms Love noted that approximately 12 months after Mr Pettit started his cannabinoid treatment in late 2018, ‘there was a marked improvement in his focus and cognitive ability’ and, as a result, he was ‘beginning to move his learning from short term to long term memory and his recall of sounds and words is becoming more automatic’. However, Ms Love further noted that Mr Pettit ‘needs to continue with explicit phonics instruction, preferably several times a week’. Mr Pettit attends tutoring twice each week, alternating between literacy and numeracy.[27] Ms Love stated that she believed ‘private, one to one tutoring sessions would continue to be the most beneficial to Edward’ because it allows for individualised learning; lessons can be adjusted to meet his needs; it creates a learning environment more conducive to focus and concentration; and it is a safe environment’.[28]
[26] Exhibit 2, ST6, page 17.
[27] Exhibit 2, ST6, page 19.
[28] ibid.
In September 2021, Professor Scheffer provided a further report regarding Mr Pettit, which relevantly stated that:[29]
Edward has significant learning difficulties and intellectual disabilities secondary to his very poorly-controlled epilepsy. He has a history of developmental and epileptic encephalopathy, which means that his epilepsy and the epileptic activity associated with his brain malformation both adversely affect his learning. He is therefore in a position where he is continuing to learn slowly and he needs full support to make sure this happens, so that he becomes as independent as possible.
Edward is getting some gym training through the NDIS and also tutoring for reading and maths twice a week. This is very important.
LEGISLATION & POLICY
[29] Exhibit 2, ST8, pages 26-27.
The NDIS Act
The objects of the NDIS Act, set out in section 3, include to:
(a) in conjunction with other laws, give effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12); and
(b) provide for the National Disability Insurance Scheme in Australia; and
(c) support the independence and social and economic participation of people with disability; and
(d) provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme launch; and
(e) enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and
(f) facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability;
(g) promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community; and
(ga) protect and prevent people with disability from experiencing harm arising from poor quality or unsafe supports or services provided under the National Disability Insurance Scheme; and
(h) raise community awareness of the issues that affect the social and economic participation of people with disability, and facilitate greater community inclusion of people with disability…
Subsection3(3) of the NDIS Act provides that, in giving effect to the objects of the NDIS Act, regard is to be had to the need to ensure the financial sustainability of the NDIS.
Section 4 of the NDIS Act sets out the general principles guiding actions under the legislation, including:
1)People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development;
2)People with disability should be supported to participate in and contribute to social and economic life to the extent of their ability;
3)People with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime;
4)People with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports;
5)People with disability should be supported to receive reasonable and necessary supports, including early intervention supports;
…
11)Reasonable and necessary supports for people with disability should:
(a)support people with disability to pursue their goals and maximise their independence; and
(b)support people with disability to live independently and to be included in the community as fully participating citizens; and
(c)develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment.
Subsection 4(17) of the NDIS Act also provides that:
It is the intention of the Parliament that the Ministerial Council, the Minister, the Board, the CEO, the Commissioner and any other person or body is to perform functions and exercise powers under this Act in accordance with these principles, having regard to:
…
(b) the need to ensure the financial sustainability of the National Disability Insurance Scheme.
Subsection 17A(3) of the NDIS Act sets out a number of principles relating to the participation of people with disability, including that:
The National Disability Insurance Scheme is to:
(a) respect the interests of people with disability in exercising choice and control about matters that affect them; and
(b) enable people with disability to make decisions that will affect their lives, to the extent of their capacity; and
(c) support people with disability to participate in, and contribute to, social and economic life, to the extent of their ability.
Subsection 33(2)(b) of the NDIS Act relevantly requires a participant’s plan to include a statement, prepared with the participant and approved by the CEO of the NDIA, that specifies, among other things, ‘the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme’.
Subsection 33(5) of the NDIS Act stipulates that in deciding whether or not to approve a statement of participant supports under subsection (2), the CEO of the NDIA, or in this proceeding the Tribunal, must:
(a) have regard to the participant’s statement of goals and aspirations; and
(b) have regard to relevant assessments conducted in relation to the participant; and
(c) be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and
(d) apply the National Disability Insurance Scheme rules (if any) made for the purposes of section 35; and
(e) have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and
(f) have regard to the operation and effectiveness of any previous plans of the participant.
The criteria in subsection 34(1) of the NDIS Act sets out what supports will be funded for an NDIS participant, as follows:
(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 Rules
Subsection 34(2) of the NDIS Act authorises NDIS rules to prescribe ‘methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(a) to (f)’ in section 34. In this regard, pursuant to subsection 209(1) of the NDIS Act, the Minister may by legislative instrument make rules regarding the NDIS.
Subsection 35(1) of the NDIS Act relevantly provides that the NDIS rules ‘may make provision in connection with the funding or provision of reasonable and necessary supports’, including prescribing methods or criteria to be applied and supports that will not be funded or provided under the NDIS.
The rules relevant to this proceeding are the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Rules), which relate to the assessment and determination of the reasonable and necessary supports that will be funded for participants under the NDIS and which the Tribunal is bound to apply pursuant to subsection 33(5)(d) of the NDIS Act. In this regard, in McGarrigle v National Disability Insurance Agency (2017) 252 FCR 121 (McGarrigle), Mortimer J outlined the distinct place of the Rules in the NDIS as follows (at [43]):
The rules are legislative instruments to be made by the Minister: see s 209. Section 209, sub-paras (4) to (7) constrain the rule-making power to preserve the federal characteristics of the NDIS. The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (the Rules) are an important element of the legislative scheme, introducing the ability to modify the operation of ss 33 and 34 by, for example, excluding certain kinds of supports from inclusion in participant plans. It is through the Rules that the executive is able to implement, within the federalism constraints imposed in s 209, some policy decision-making about the nature and extent of supports to be provided or funded under the NDIS.
Part 3 of the Rules provides guidance for assessing a participant’s proposed supports under subsection 34(1) of the NDIS Act.
Clause 3.5 of the Rules relates to the criterion in subsection 34(1)(f) of the NDIS Act, regarding whether supports are most appropriately funded or provided through the NDIS, rather than other systems of service delivery. Most relevantly, clause 3.5 provides that Schedule 1 to the Rules sets out matters to have regard to in considering this criterion, including in relation to school education and higher education and vocational education and training.
Paragraphs 7.1 to 7.3 in Schedule 1 of the Rules state that:
The Act limits the supports that can be provided or funded under the NDIS to supports that are not more appropriately funded or provided through other service systems, for example as part of a universal services obligation or in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
The considerations set out in this Schedule must be taken into account by the CEO in deciding whether a support is more appropriately provided or funded by the NDIS or another service system.
For the avoidance of doubt, while this Schedule sets out considerations relevant to whether a support should be considered to be more appropriately provided or funded through another service system, it does not purport to impose any obligations on another service system to fund or provide particular supports.
Most relevantly in this proceeding, paragraphs 7.13 to 7.16 in Schedule 1 provide as follows:
School education
The NDIS will be responsible for supports that a student requires that are associated with the functional impact of the student’s disability on their activities of daily living (that is, those not primarily relating to education or training attainment), such as personal care and support, transport to and from school and specialist supports for transition from school education to further education, training or employment that are required because of the student’s disability. Any supports funded by the NDIS will recognise the operational requirement and educational objectives of schools.
The NDIS will not be responsible for personalising either learning or supports for students that primarily relate to their educational attainment (including teaching, learning assistance and aids, school building modifications and transport between school activities).
Higher education and vocational education and training
The NDIS will be responsible for supports that a student requires which are associated with the functional impact of the student's disability on their activities of daily living (that is, those not primarily relating to education or training attainment), such as personal care and support, transport to and from the education or training facility and specialist supports for transition from education or training to employment that are required because of the person's disability.
The NDIS will not be responsible for the learning and support needs of students that primarily relate to their education and training attainment (including teaching, learning assistance and aids, building modifications, transport between education or training activities and general education to employment transition supports). [emphasis in original]
Operational Guidelines
The NDIA has made operational guidelines to provide guidance on the application of the NDIS Act and the Rules. Relevantly, the NDIS Operational Guidelines – Planning (Operational Guidelines)[30] provide that:[31]
[30] Exhibit 1, T20, pages 97-170.
[31] ibid., pages 121-122.
10.8.5 School education
The NDIS will be responsible for supports that a student requires that are associated with the functional impact of the student's disability on their activities of daily living (that is, those not primarily relating to education or training attainment), such as personal care and support, transport to and from school and specialist supports for transition from school education to further education, training or employment that are required because of the student's disability. Any supports funded by the NDIS will recognise the operational requirements and educational objectives of schools (rule 7.13 of the Supports for Participants Rules).
The NDIS will not be responsible for personalising either learning or supports for students that primarily relate to their educational attainment (including teaching, learning assistance and aids, school building modifications and transport between school activities) (rule 7.14 of the Supports for Participants Rules).
Please refer to Appendix 1 for further guidance on whether school education supports are appropriately funded through the NDIS or more appropriately funded by other parties.
10.8.6 Higher education and vocational education and training
Supports for education and training are designed to assist the participant to develop new skills and qualifications and to find and retain employment. The NDIA encourages participants to participate in the Australian labour force to [the] maximum extent they are able to in accordance with their goals, objectives and aspirations.
The NDIS will be responsible for supports that a student requires which are associated with the functional impact of the student's disability on their activities of daily living (that is, those not primarily relating to education or training attainment), such as personal care and support, transport to and from the education or training facility and specialist supports for transition from education or training to employment that are required because of the person's disability (rule 7.15 of the Supports for Participants Rules).
The NDIS will not be responsible for the learning and support needs of students that primarily relate to their education and training attainment (including teaching, learning assistance and aids, building modifications, transport between education or training activities and general education to employment transition supports) (rule 7.16 of the Supports for Participants Rules).
Please refer to Appendix 1 for further guidance on whether higher education and vocational education and training supports are appropriately funded through the NDIS or more appropriately funded by other parties. [emphasis in original]
Appendix 1 to the Operational Guidelines sets out a table in relation to whether a support is most appropriately funded by the NDIS. Most relevantly, in relation to school education and higher education, vocational education and training, Appendix 1 provides three columns with the following headings: ‘Supports generally funded by NDIS’; ‘Supports which, dependent on their purpose, may be funded by the NDIS or other parties’; and ‘Supports generally funded by other parties’.[32] The latter column expressly states that this comprises all aspects of ‘teaching and learning’, including ‘[t]eaching and learning assistance, including teachers assistants and tutors’.[33]
[32] Exhibit 1, T20, pages 157-160.
[33] ibid.
The Operational Guidelines represent government policy and, to the extent they are consistent with the relevant legislation, should be applied by the Tribunal unless there is a good reason not to do so.[34] The Tribunal is not aware of any reason not to apply the policy set out in this document in this proceeding.
CONTENTIONS
[34] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. See also Madelaine and NDIA [2019] AATA 4025 at [9].
Mr Pettit
Mr Pettit contended that funding for literacy and numeracy tutoring satisfies all of the ‘reasonable and necessary support’ limbs of subsection 34(1) of the NDIS Act and the Tribunal should therefore approve the inclusion of that support in the statement of participant supports in his NDIS plan pursuant to subsection 33(2) of the NDIS Act.
It was submitted that Mr Pettit’s Paediatric Neurologist, Professor Scheffer, and his tutor, Ms Love, believe the requested support is reasonable and necessary. The written submissions provided on behalf of Mr Pettit, and relied upon at the hearing, further stated that:
Our argument has always been that this support is for our son, Edward Pettit, to be able to live independently, get meaningful paid employment, achieve a greater degree of happiness and a feeling of social equality and value. How can work be interesting, productive, and safe if he cannot read?
The respondent’s submission we have been directed to approximately twenty pages of argument about why the NDIS are refusing to fund the $4-5K per year for Edward to receive a reasonable and necessary support from Sandi Love. Is this document with the twenty pages of argument ‘economic and quick’?
Are these twenty pages of legal waffle to hide the fact that there is nothing in the legislation against Edward’s claim but rather to hide the fact that there is overwhelming support in the legalisation for Edward’s claim.
The only point made by the respondent is the obscure delineation between federal and state responsibility with regard to education and I would argue that this has nothing to do with us. In fact, we are not asking for funding for education, we are asking for funding that is to do with functional and daily capacity of daily living which comes under work preparation and is covered by the NDIS. Edward is not seeking education for the attainment of a certificate but rather a skill that is needed for him to function fully in his daily life and social and economic participation. Without it he is limited to being a ‘dish pig’ in his current hospitality job.
The only other point I could scramble out of these 20 pages was that this would break the NDIS bank. Again, what has this got to do with us. That responsibility lies with the proper administration of the NDIS. The respondent’s submission has not, however, put an argument how our request will break the NDIS bank. I would argue that all these hearings are contributing to that problem.
There is one point in the 20 pages worth discussing here which is point 67 that states ‘the funding sought is tutoring to educate the applicant in numeracy and literacy…it is not funding in the form that is expressly able to be included in a statement of participant supports…that is primarily associated with the applicant’s functional capacity for the activities of daily living’. It is only in the world of legal fiction that a distinction can be made that says that what we are asking for is not associated with applicant’s functional capacity for the activities of daily living. He cannot read so if he picks up poison rather than flour for the purposes of making a cake, the workplace would be closed down and he would lose his job.
…
What more evidence does the NDIS need. I believe Professor Scheffer, lead expert in Epilepsy world-wide, has the authority here and has clearly stated that his learning was impacted in school due to his disability and we are now needing full cooperation and support to assist him to be work ready and able.
Can we now provide an example of real life not legal fiction?
For example, three sums. One plus one equals two. One box plus one box equals two boxes. Two centimetres plus two centimetres equals four centimetres.
One plus one is probably not work readiness but rather education. One box plus one box is probably work readiness. Measuring a distance and adding the measurements is probably part of work readiness. The first sum is not admissible for NDIS funding. The second and third sum are probably admissible for NDIS funding but the applicant, Edward, would have to be trained to use a calculator to get the answer to these sums. He could not be trained to get them from first principles. The problem occurs that even in teaching people to use a calculator a basic understanding of maths is required. In Edward’s case that could not achieved in his 12 years of education due to his disability.
Every NDIS support worker doing this kind of work has to possibly break the NDIS code by teaching basic maths with their clients, otherwise they do not understand how to use a calculator. He or she does not have the benefit of the lawyer at their shoulder to guide them how to do this job within the legislation of the NDIS Act and this legal fiction.
In conclusion, the criteria of s 34(1) and Rules 5.1 and 7.13-7.16 that the respondent refers the Tribunal to consider in their submission states that our request does not meet what is reasonable and necessary has been argued sufficiently in our submission and finds that our request does meet what is reasonable and necessary and should, therefore, be included in Edward’s NDIS package. [emphasis and errors in original]
The NDIA
The NDIA’s primary submission was that the requested support did not meet the requirement in subsection 34(1)(f) of the NDIS Act, because it was not most appropriately funded through the NDIS, including having regard to the Rules and Operational Guidelines regarding what the NDIS will and will not fund in relation to education and higher education or vocational training. The NDIA also submitted that the requested support did not represent value for money, relative to both the benefits achieved and the cost of alternative support, pursuant to subsection 34(1)(c) of the NDIS Act. It further contended that there was insufficient evidence to establish that the support will be, or is likely to be, effective and beneficial, having regard to current good practice, pursuant to subsection 34(1)(d) of the NDIS Act. Lastly, the NDIA submitted that funding for tutoring duplicates other supports delivered under alternative funding through the NDIS, being the SLES funding of more than $22,000, which is contrary to clause 5.1(c) of the Rules and that it had not been established that the support was related to Mr Pettit’s disability, as required under clause 5.1(b) of the Rules.
WITNESSES
Ms Kate Soulsby
The Tribunal has considered Ms Soulsby’s detailed letter of support filed in this proceeding in relation to her son’s requested literacy and numeracy tutoring.[35] Ms Soulsby gave evidence at the Tribunal hearing by MS Teams. She said funding was requested for Mr Pettit to receive ongoing tutoring in reading and maths, which were core life skills. Ms Soulsby explained that her son’s ten years of schooling had been seriously impacted by his epilepsy, numerous hospitalisations and challenges concentrating in the classroom. These were accentuated by Mr Pettit’s impacted sight and hearing.
[35] Exhibit 2, ST7, pages 21-25.
Mr Pettit has been receiving tutoring support for seven years, with approximately four of those years being with Ms Love. Ms Soulsby told the Tribunal that her son’s learning and reading had accelerated dramatically since he commenced taking cannabinoid oil in 2018. Ms Soulsby said that she understands the legislation refers to tutoring not meeting the requirements of the NDIS Act, but that it also says the object is to support the independence and economic participation of people with a disability, together with reasonable and necessary support and choice and control. Ms Soulsby referred to the requested tutoring support as assisting Mr Pettit to live independently, work in a meaningful role, and have social equality and wellbeing. It was also described as an occupational health and safety issue. Ms Soulsby told the Tribunal that tutoring was not for her son’s education, but for his functioning and daily life skills.
By way of cross-examination, Ms Soulsby was asked what the more than $22,000 in SLES funding in Mr Pettit’s NDIS plan had been applied towards. She said that Mr Pettit had been provided support in securing employment at a local café for eight hours each week and with navigating issues related to work shifts and challenging behaviour. Mr Pettit was also receiving support to investigate securing more work with other employers. He is also receiving mentoring through personal training, such as boxing, which provides social interaction and engagement and community participation. However, this support was not providing assistance with the life skills of reading and maths.
Ms Soulsby agreed that her son’s reading had improved since he had commenced taking cannabinoid oil. Mr Pettit was put on a trial of this medication by Professor Scheffer and was now receiving what was described as a ‘compassionate supply’. Before Mr Pettit had been taking cannabinoid oil, he experienced one to two hospitalisations each year due to his epilepsy and had been in intensive care for a six day period. Mr Pettit currently has ‘90%’ coverage and the frequency of his epilepsy is ‘much improved’; his head is ‘clearer’ and he ‘can learn’.
Ms Soulsby confirmed that Mr Pettit has been reading a car driving manual with the goal of attaining his driver’s licence. Counsel for the NDIA asked Ms Soulsby how her son’s improved learning had been evaluated, including the impact of the tutoring. Ms Soulsby said that, although not formalised, Ms Love evaluates Mr Pettit’s progress and he is ‘stepping up’ through the different levels of readers. Ms Soulsby has observed ‘dramatic changes’ in her son’s reading, such as with the driving manual and his understanding of computer games. In addition, Mr Pettit does not often now ask for assistance with reading at home. Before Mr Pettit started taking cannabinoid oil, he was ‘not getting anywhere’ with his literacy and this was described as an insurmountable ‘block’. However, the last few years have seen a ‘significant increase’ in Mr Pettit’s reading.
In completion of her evidence, Ms Soulsby told the Tribunal that the requested tutoring support was a life skill, and not education, to help her son function independently as much as possible and find engaging work. Mr Pettit is seeking funding to ensure he has a holistic NDIS package that incorporates funding to assist him move to independent living and a meaningful life.
Mr Bruce Pettit
Mr Pettit’s father, Bruce Pettit, gave evidence to the Tribunal at the hearing of his son’s application. He told the Tribunal of his experience working for a disability service provider and said that ‘sometimes rules are silly’. He provided an example of teaching simple maths topics to an NDIS participant and having been ‘admonished’ by the provider, who ultimately lost support. Mr Pettit said it was ‘impractical’ to apply the rules.
CONSIDERATION
The decision for the Tribunal is whether the provision of funding for tutoring services for literacy and numeracy is a ‘reasonable and necessary support’ within the meaning of subsection 33(2) of the NDIS Act to be included in the statement of participant supports in Mr Pettit’s NDIS plan. This requires the Tribunal to be satisfied that the requested support meets all limbs in subsection 34(1) of the NDIS Act.
As the Federal Court of Australia held in National Disability Insurance Agency v WRMF [2020] FCAFC 79 at [201]:
The matters set out in s 34(1) are more than mandatory considerations, because in terms s 34 requires that a decision-maker be positively satisfied about each matter. They are more in the nature of criteria of which the decisions-maker (CEO, delegate or Tribunal) must be satisfied on the material. That satisfaction must be reasonably and rationally formed, not taking into account irrelevant considerations, and taking into account any relevant considerations, but otherwise it is for the decision-maker to form the requisite state of satisfaction on the given material.
For the following reasons, the Tribunal is not satisfied that provision of funding by the NDIS for Mr Pettit to receive tutoring in literacy and numeracy meets the criterion required by subsection 34(1)(f) of the NDIS Act. That provision requires a decision-maker to be satisfied that the support is most appropriately funded or provided through the NDIS, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered as part of a universal service obligation.
As set out above in these reasons, clauses 7.13 and 7.15 of the Rules provide that the NDIS will be responsible for supports that ‘are associated with the functional impact of the student’s disability on their activities of daily living (that is, those not primarily relating to education of training attainment).’ This applies to school education, higher education and vocational education and training. Additionally, and most importantly, clauses 7.14 and 7.16 of the Rules expressly state that the NDIS will not be responsible for learning or support needs that primarily relate to education, including teaching, learning assistance and aids. As held in McGarrigle, the Rules can exclude certain kinds of support from inclusion in NDIS participant plans. Most relevantly, the Rules expressly exclude education, including teaching and learning assistance in the form of tutoring, from being funded by the NDIA and included in an NDIS plan.
In this regard, applying the terms of the Rules to the facts of this proceeding, the Tribunal is satisfied that the provision of tutoring in literacy and numeracy is learning support in the form of teaching and learning assistance that relates primarily to Mr Pettit’s educational attainment and is not associated with the functional impact of his disability on his activities of daily living. Accordingly, pursuant to subsection 34(1)(f) of the NDIS Act, the Tribunal finds that this requested support is not one that is most appropriately funded or provided through the NDIA, but rather is more appropriately funded or provided through other general systems of service delivery or support offered as part of a universal service obligation. That is, the learning needs of Mr Pettit that relate to his educational attainment, including teaching, learning assistance and aids, is the domain of the education system. Tutoring in relation to a person’s learning needs and education is a matter clearly excluded by the Rules from being funded by the NDIS. In this regard, the Tribunal again notes that Appendix 1 to the Operational Guidelines specifically states that all aspects of teaching and learning, including teaching and learning assistance, such as teachers assistants and ‘tutors’ is a support that is generally funded by other parties and not the NDIS. The requested funding for tutoring is expressly not able to be included in a statement of participant supports (in contrast to a support that is associated with the functional impact of Mr Pettit’s disability on his activities of daily living).
While acknowledging the objects of the NDIS Act include supporting the independence and economic participation of people with a disability and choice and control in pursuing their goals, the inability of the NDIS to fund all possible services or supports sought by a participant was recognised by the Productivity Commission report which led to the establishment of the NDIS in 2013. It is a longstanding principle and most fundamentally enunciated in subsection 34(1) of the NDIS Act, requiring satisfaction that a requested support is ‘reasonable and necessary’ for the NDIS to fund or provide. In YPRM and National Disability Insurance Agency [2016] AATA 1023 (YPRM), the Tribunal at [73] stated, in relation to subsection 25(3) of the NDIS Act, which is similarly worded to subsection 34(1)(f), that:
We consider that the inclusion of these provisions in the Act highlights a clear feature of the architecture of the NDIS, namely that it is not intended to be the vehicle by which all the functional needs of Australians with disabilities are met. Rather, the intention is plainly evinced that those needs should be met by a balance of services coming both from the NDIS and from general health, education and community resources which address the needs of the broader population. Clearly, the focus and cost effectiveness of service delivery as between specialist and general services are significant factors in determining from which well resources are to be drawn.
In YPRM, the Tribunal at [87] quoted with approval the following statement from Young and National Disability Insurance Agency [2014] AATA 401 (Young) at [41]:
Whether or not funding is available through other general systems is not the test of whether it is most appropriately funded or provided through the NDIS. The fact that the health system does not fund entirely, or even at all, what is essentially clinical treatment, or some other form of support that is more appropriately funded through the health system, does not make it the responsibility of the NDIS. In our view, s 34(1)(f) reflects the statement of the Productivity Commission, which we have referred to above, that the purpose of the NDIS is not to respond to any shortfalls in mainstream services (nor does it purport to impose any obligations on another service system to fund or provide particular supports: cl 7.3 of sch 1).
The evidence before the Tribunal was that Mr Pettit had been receiving learning assistance or support through the education system while he attended school. He has also for many years been receiving privately funded tuition in literacy and numeracy. Although Mr Pettit is no longer at school and not presently enrolled in any higher education or vocational training, it does not follow that it falls to the NDIS to fund what is essentially educational support or assistance for his learning needs. The Rules regarding education state that the NDIS is responsible for supports associated with the functional impact of a disability on a person’s activities of daily living, such as personal care and support, transport and specialist supports for transition from education or training to employment. The Rules expressly state that the NDIS will not be responsible for learning and support needs that primarily relate to education and training, including teaching, learning assistance and aids. Even if Mr Pettit were undertaking a form of further education, the Rules and Operational Guidelines provide that the NDIS is not responsible for learning and support, including teaching, learning assistance and tutoring. While it was contended on behalf of Mr Pettit that literacy and numeracy tuition is to assist him function in activities of daily living such that, rather than education, it should be viewed as a life skill capable of being funded by the NDIS, for the reasons previously stated in this decision, this submission is not supported by the Rules or the broader legislative architecture of the NDIS. Moreover, having now finished secondary school, Mr Pettit’s NDIS plan includes substantial funding for School Leaver Employment Supports as well as capacity building support identified as being for ‘improved daily living’, in the context of assistance to enable him to transition to employment.
CONCLUSION
For the foregoing reasons, the Tribunal finds that the requested support of funding for tuition in literacy and numeracy is outside the scope of matters that are ‘most appropriately funded’ by the NDIS. Therefore, the Tribunal is not satisfied that the requested support meets the criterion in subsection 34(1)(f) of the NDIS Act.
The Tribunal acknowledges that this will be a disappointing decision for Mr Pettit and his family. Understandably, they want to ensure that he has the best available support to continue to become independent and advance his social and economic participation in the community. However, when applying the terms of the relevant legislative instruments enacted or endorsed by the Parliament, Mr Pettit’s request for NDIS funding for tutoring services cannot succeed.
Having considered all the available evidence, the Tribunal is not satisfied that the provision of tutoring in literacy and numeracy is most appropriately funded by the NDIS, as required by subsection 34(1)(f) of the NDIS Act, but is more appropriately funded or provided through other general systems of service delivery or support services. Because this criterion is not met, due to the cumulative nature of the ‘reasonable and necessary support’ requirements in subsection 34(1) of the NDIS Act, where all elements must be satisfied in relation to the funding or provision of each requested support, Mr Pettit’s application is unsuccessful.
DECISION
The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975.
I certify that the preceding 56 (fifty-six) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.
............................[sgd]............................................
Associate
Dated: 18 February 2022
Date(s) of hearing:
2 February 2022
Date final submissions received:
Applicant’s representative:
15 November 2021
Ms Kate Soulsby
Counsel for Respondent:
Ms Reg Graycar
Solicitor for Respondent:
Ms Qi Qi Ren, Australian Government Solicitor
3
4
0