QHFQ and National Disability Insurance Agency

QHFQ and National Disability Insurance Agency [2021] AATA 256 (18 February 2021)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number:2020/1557
QHFQRe:
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

AndNYXC
OTHER PARTY

AndZHJG
OTHER PARTY

DECISION
Tribunal I Thompson, Member
Date:18 February 2021
Place:Hobart

The Tribunal sets aside the decision under review and in substitution approves a statement of participant supports in the National Disability Insurance Scheme (NDIS) plan 24 February 2020 to 23 February 2021 as follows:
(a)funding in the applicant’s plan to be managed by a registered plan manager;
(b)a review date that is 12 months after the day on which the statement of participant supports is approved;
(c)the applicant’s plan include funding for support coordination as follows to assist the applicant to access funded supports:
(i)50 hours of Level II Support Coordination in accordance with the NDIS Support Catalogue; and
(ii)30 hours of specialist support coordination in accordance with the NDIA support catalogue

(d)all other supports in the applicant’s current NDIS plan be continued pro-rata in accordance with the NDIS support catalogue.

……………[sgd]……………….
I Thompson, Member
NATIONAL DISABILITY INSURANCE SCHEME - applicant is a child – parents separated – interim arrangements for joint care of the applicant – whether the applicant’s NDIS Plan should be self-managed or plan managed - reviewable decision set aside and substituted
Legislation
Administrative Appeals Tribunal Act 1975
National Disability Insurance Scheme Act 2013
National Disability Insurance Scheme (Children) Rules 2013
National Disability Insurance Scheme (Supports for Participants) Rules 2013
National Disability Insurance Scheme (Plan Management) Rules 2013
Secondary Materials
Operational Guideline – Planning and Assessment – Supports in the Plan – Interface with Health
REASONS FOR DECISION
I Thompson, Member
18 February 2021

QHFQ is a participant in the National Disability Insurance Scheme (NDIS). He is now eight years old. He has been an NDIS participant from 9 September 2019 when he was six years old, about to turn seven. He has a diagnosis of autism spectrum disorder (ASD) and a language impairment.
QHFQ seeks review of a decision by the National Disability Insurance Agency (NDIA), within the meaning of the National Disability Insurance Scheme Act 2013 (the NDIS Act).
As the applicant is a child, the Tribunal made a confidentiality order under s35(2) of the Administrative Appeals Tribunal Act 1975 (the AAT Act). By that order, the Tribunal directed that the hearing take place in private, gave directions as to persons who could be present at the hearing and prohibited disclosure of information that may identify the applicant.
The applicant’s requests to the NDIA and his requests for review of the relevant decision, including his application to this Tribunal, were initiated by his father on his behalf. Before the hearing commenced, an order was made to join the applicant’s father and the applicant’s mother as parties to the proceedings in accordance with s30(d) of the AAT Act. The parents live separately. Currently, the arrangement is for them to have shared care of their child, alternating weekly.
The hearing took place by audio-visual means on 26 and 27 November 2020 and resumed on 28 and 29 January 2021. ZHJG (the applicant’s father) and NYXC (the applicant’s mother) were self-represented. The NDIA was represented by counsel, Ms Haban-Beer
THE ISSUE
The applicant’s father wants the NDIS funded supports in the applicant’s NDIS plan to be completely self-managed by both parents.
The applicant’s mother wants the NDIS funding to be completely plan managed.
The NDIA submits that neither of those requests are appropriate and furthermore that the applicant’s current NDIS Plan is not working at all as no supports are being accessed.
In its Statement of Facts, Issues and Contentions[1] dated 23 October 2020, the NDIA submitted that the funding for supports in the applicant’s NDIS plan (other than the funding for the plan management itself) should be managed completely by a registered plan manager.
[1] Exhibit 1, pp 297-302.
In a separate submission[2] also made on 23 October 2020, the NDIA provided submissions in support of a request under s42D(1) of the AAT Act on 5 October 2020 for remittal to the NDIA for reconsideration of the decision under review.[3] In particular, the NDIA contended that all funding in the applicant’s NDIS plan should be managed by a registered plan manager. Secondly, the plan should include funding for support coordination which could assist the applicant to access funded supports.
[2] Ibid, pp 292-297.
[3] Exhibit 2, p 290.
The NDIA was concerned that the applicant had not received any funded supports from the time of his first NDIS plan because the parents had not reached agreement about the provision of supports. According to that submission, the applicant’s parents had not been able to agree on who should manage the funding and who should provide the supports.
The NDIA contended that the applicant’s parents do not have the capacity as joint child representatives to manage the funding of the NDIS supports and this becomes an unreasonable risk for the applicant. In order to manage that risk and to ensure that the applicant receives the supports funded by his NDIS plan, the NDIA contended that the father’s proposal should not be accepted to any extent.
In his response[4] to the NDIA’s Statement of Facts, Issues and Contentions, the applicant’s father submitted that plan management was not in the best interests of his son. He rejected the assertion that self-management presents an unreasonable risk and he described that assertion as exaggerated and misleading. He contended that evidence of parental conflict had not been provided. He offered a written undertaking to share self-management of the NDIS plan with the aim of ensuring the best interests of the child are met. He pointed to deficiencies in the NDIA’s submission which were described variously as misleading, untrue and flawed.
[4] Exhibit 1, pp 348-353.
BACKROUND
Historical information about the applicant was provided in a comprehensive report[5] written by a speech pathologist, a psychologist and an occupational therapist in a multi-disciplinary setting in a major hospital. The report, dated 24 October 2016, confirmed a diagnosis of autism spectrum disorder as defined in the DSM-5.[6] Recommendations included a medical review, continued access to early childhood intervention services, a routine hearing assessment because of the applicant’s developmental issues including delayed speech and language, allied health services including speech pathology, occupational therapy assessments and assistance at school. At that time, funding and assistance for the child was available and accessed through the Helping Children with Autism (HCWA) package under the guidance of the parents.
[5] T3, T documents, p 104.
[6] Diagnostic and Statistical Manual of Mental Disorders, 5^th edition, 2013.
A report written by an occupational therapist in May 2019, when the applicant was six years and four months old, noted that the applicant has supportive parents who were interested in the child having access to long-term supports through the NDIS.[7] The report suggested that the child requires moderate assistance to manage self-care and to address problems with social skills, organisation, motor planning and sensory issues with recommendations for occupational therapy at school and through clinic visits, inclusive team sport / swimming lessons and possible intervention by a speech therapist. By that time the applicant was in grade one at primary school with a comprehensive individual education plan. This plan was apparently in place from July 2018 and updated for the first term in 2019.[8] This plan includes detailed information about support needs in educational, personal, physical, social and emotional and sensory areas together with analysis of adjustments and strategies to address those issues and the key outcomes to be achieved. The support staff who provided specialised disability support at the school are listed in the plan, together with the providers of external services in occupational therapy and continence management.
[7] T5, T documents, pp 143-146.
[8] T4, T documents, p 127.
It is encouraging to note that despite the interruption to schooling last year because of the COVID-19 pandemic lockdowns, the applicant was described in correspondence from the Department of Education in October 2020, as progressing “really well” at school where there were “no current concerns” about his progress. A specialised assessment was not required at that time and the father was advised in that correspondence:
“… If this changes the school will contact you to consider taking this assessment into the future. Given this information you may wish to consider saving the NDIS funds at this time, so that the funds are available you into the future.”[9]
[9] Exhibit 2 P 357.
NDIS PLANS
On 22 October 2019, the NDIA made a decision which approved a statement of participant supports for the applicant in an NDIS plan[10] through which funding totalling $16,484.47 was provided for supports, including core supports and capacity building supports. The plan included a review date which expired on 21 October 2020. Apart from a small component of the funding to be managed by the NDIA for set up costs and initial financial administration, the bulk of the funds were to be plan managed. The father requested an internal review of the decision.[11] In making that request he asked that the NDIS plan in its entirety be self-managed.
[10] T10, T documents, p 171.
[11] T 8, T documents, p 168.
On review, a delegate of the NDIA varied the earlier decision by deciding that half of the plan be self-managed, and half of the plan be plan managed. A new NDIS plan was created to give effect to this decision on this internal review. This NDIS plan[12] commenced on 24 February 2020 with a review date on 23 February 2021. The total funded supports remained the same at $16,484.47. However, the provisions for plan management were changed from those in the first plan. In the second plan:
·the funding for core supports of $1348.18 is divided in half so that $674.09 is self-managed and $674.09 is plan-managed
·the funding for capacity building supports amounts to $15,136.29 which is divided into two components. One component is for improved life choices (choice and control) funded at $1454.89. Those supports are NDIA managed setup costs and administration. The main component of $13,681.40 for improved daily living is divided equally with $6840.70 to be self-managed and $6840.70 to be plan-managed.
[12] T 10, T documents, p 172.
In the letter explaining the outcome of the request for internal review, the NDIA delegate wrote:
In making my decision, I considered sections 43 and 44 of the NDIS Act and Part 3 of the NDIS (Plan Management) Rules. Specifically, I have determined that the following circumstances that prevent self-management of the entire plan are applicable to the current plan if a participant or plan nominee self-managing would present and unreasonable risk to the participant – s44(2) (a), s 44 (2A).[13]
[13] T 2, T documents, p 103.
In that letter, the delegate went on to say that the current shared care arrangements for the applicant, namely one week living with the father and one week living with the mother, meant there was an unreasonable risk that “…his NDIS plan supports cannot be utilised by both parents therefore I have changed the plan management to reflect both parents’ requests.”[14]
[14] Ibid.
The applicant’s goals are set out in his first and second NDIS plan and they are identical. His short-term goals are to develop his communication and language skills and to become more independent and understand the importance of safety. The medium or long-term goal is for him to develop his self-confidence and to learn how to self-regulate. The way to achieve the goals and the way he will be supported are set out in identical terms in each of the plans. It is envisaged that he will continue to be provided with opportunities at home, at school and in the community to practice skills and strategies to support the goals together with support from an early childhood partner “to connect to a provider delivering early childhood early intervention supports” and “support to the family to connect to other community services.”[15]
[15] T10, T documents, p 175.
THE NDIS
The objects of the NDIS Act are set out in s3. As well as giving effect to Australia’s obligations under the United Nations Convention on the Rights of Persons with Disabilities, they include:
·supporting the independence and social and economic participation of people with disability; and
·enabling people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports.
Section 4 of the NDIS Act sets out general principles by which actions under the Act are to be guided. Section 5 states further principles by which actions of persons who do acts or things under the Act on behalf of others are to be guided.
CHILDREN AND THE NDIS
Section 9 of the NDIS Act defines a child as a person under 18 years of age. Section 4(16) of the NDIS Act includes a specific reference to children and young people with disability in relation to the promotion of their personal and social development. Section 5(f) refers specifically to children:
(f) if the person with disability is a child – the best interests of the child are paramount, and full consideration should be given to the need to:
(i)     Protect the child from harm; and
(ii)    Promote the child’s development; and
(iii)   Strengthen, preserve and promote positive relationships between the child and the child’s parents, family members and other people who are significant in the life of the child.
Chapter 4, Part 4 of the NDIS Act includes provisions about children which includes plan management, supports for participants, parental responsibility and duty to children.
Section 209 of the NDIS Act enables the Minister to make rules pursuant to the legislation.
The NDIS (Children) Rules 2013 were made pursuant to ss 74, 75 and 76 of the NDIS Act. Rule 1.4 provides that:
(a)the role of families, carers and other significant persons in the lives of people with disability is to be acknowledged and respected
The NDIS (Supports for Participants) Rules 2013 makes specific reference in r 3.4(a) to a participant who is a child. The requirement is that the decision maker must consider the following matters:
(a)for a participant who is a child:
(i)     that it is normal for parents to provide substantial care and support for children; and
(ii)    whether, because of the child’s disability, the child’s care needs are substantially greater than those of other children of a similar age; and
(iii)   the extent of any risks to the wellbeing of the participant’s family members or carer or carers; and
(iv)   whether the funding or provision of the support for a family would improve the child’s capacity or future capacity or would reduce any risk to the child’s wellbeing.
A PARTICIPANT’S PLAN
Section 33(2) of the NDIS Act provides that a participant’s plan must include a statement of participant supports which specifies matters that include:
(a)the general supports (if any) that will be provided to, or in relation to, the participant; and
(b)the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme; and
(c)the date by which, or the circumstances in which, the Agency must review the plan under Division 4; and
(d)the management of the funding for supports under the plan (see also Division 3); and
(e)the management of other aspects of the plan.
Criteria for management of a participant’s plan are contained in the National Disability Insurance Scheme (Plan Management) Rules 2013 (the Plan Management Rules). Part 3 of the Plan Management Rules addresses situations in which it is not appropriate for participants to manage funding for supports under the plan and when self-management would pose an unreasonable risk to the participant.
Part 3 of the Plan Management Rules provides:
3.1 A participant’s plan includes a statement of participant supports that specifies, among other things:
(a) the reasonable and necessary supports (if any) that will be funded under the NDIS; and
(b) the management of the funding for supports under the plan.
3.2 A participant is able, during the planning process, to plan management request that specifies who the participant wishes to manage the funding for supports under the plan. The plan must specify that the funding is to be managed wholly, or to an extent specified in the plan, by any of the participant, a registered plan management provider, the Agency or the plan nominee.
3.3 There are some restrictions under the Act on the extent to which participants can self-manage the funding for supports under their plan.
3.4 A participant will not be able to self-manage the funding for supports under their plan to any extent if they are an insolvent under administration.
3.5 Nor will a participant be able to manage the funding for supports under their plan to an extent if the CEO is satisfied that this would present an unreasonable risk to the participant.
3.6 This Part relates to deciding whether there would be an unreasonable risk to the participant if the participant (or the participant’s plan nominee or child’s representative) were to manage the funding for supports to the extent proposed.
The NDIS Operational Guidelines – Planning[16] provides information about the preparation and review of a participant’s plan together with principles and general matters relating to plans. Those guidelines can be considered by the Tribunal unless there are reasons not to, such as inconsistency with the legislation.
[16] T15, T documents, p 207.
Management of the funding for supports is discussed in s13 of the NDIS Operational Guidelines – Planning[17] with reference to ss 42 and 43 of the NDIS Act. Key points include:
·managing the funding for supports includes purchasing those supports, receiving and managing funding provided by the NDIA and acquitting that funding
·the plan must be managed wholly or to a specified extent by the participant or a registered plan management provider or the NDIA or the participant’s plan nominee
·unless a participant’s plan is managed by the NDIA, there is no restriction on the provider of the supports and participants can exercise choice of selection of the providers
·the supports must be provided by a registered provider of supports only when the funding is managed by the NDIA
·the NDIA will give emphasis to the participant’s preference for a plan management
·where a participant is a child the request for plan management may be made by the child's representative.
[17] Ibid, T Documents, p 242.
UNREASONABLE RISK
The Plan Management Rules provide some detail about the circumstances in which there might be an unreasonable risk to the participant:
3.7 If the participant is a child, or is represented by a plan nominee, the CEO is to have regard to the following:
(a)the capacity of the child’s representative or the plan nominee to manage finances;
(b)whether the child’s representative or the plan nominee has an interest that could lead a reasonable person to consider that NDIS amounts within their control might be spent other than in accordance with the participant’s plan;
(c)whether, and the extent to which, any risks could be mitigated by any safeguards or strategies the Agency could put in place through the participant’s plan.

Section 13.2.3 of the NDIS Operational Guidelines – Planning discusses the situation where there is an unreasonable risk to the participant. It points out:
A child’s representative must not manage the funding for supports under a plan to the extent that it poses unreasonable risk to the child (section 74(b)).
Where the NDIA decides that there is an unreasonable risk to the participant, the funding for supports under the plan must still be managed in accordance with the participant’s plan management request, to the extent that the participant is not prevented from managing it (section 43(3)(a)).
The remainder of the funding for supports under the plan must be managed by the NDIA or a registered plan management provider (section 43(3)(b)).[18]
[18] T15, T documents, p 245.
CONSIDERATION
It is undisputed that the parents presently share equal parental responsibility for the applicant.
Section 75 (1) (a) of the NDIS Act states that a person has parental responsibility if “the person is the child’s parent and has not ceased to have parental responsibility for the child because of an order made under the Family Law 1975 or a law of a State or Territory”.
Rule 3.2 of the NDIS (Children) Rules 2013 state that:
The child’s representative will normally be the person who has, or the persons who jointly have, parental responsibility for the child. (See section 75 of the Act and Part 4 of these Rules for how to determine who has parental responsibility.)
Part 4 of NDIS (Children) Rules 2013 state that:
4.1 There are different rules for determining who has parental responsibility, depending on whether the child has a guardian. Under these rules, in each case, the person with parental responsibility will either be:
(a)the child’s guardian; or
(b)1 or more of the persons who satisfy parental condition 1 or parental condition 2
4.2 The parental conditions are as follows:
parental condition 1 is that the person:
(a)is a parent of the child; and
(b)has not ceased to have parental responsibility for the child because of an order made under the Family Law Act 1975 or a law of a State or a Territory.
parental condition 2 is that, under a parenting order (within the meaning of the Family Law Act 1975):
(a)the child is to live with the person; or
(b)the child is to spend time with the person; or
(c)the person is responsible for the child’s long-term or day-to-day care, welfare and development. Persons who satisfy parental condition 1 or parental condition 2 will also satisfy paragraph 75(1)(a) or (b) of the Act.
Persons who satisfy parental condition 1 or parental condition 2 will also satisfy paragraph 75(1)(a) or (b) of the Act.
The Tribunal is satisfied that at this time, the applicant’s parents jointly are the child representative for the purposes of the NDIS Act. It is clear from the evidence that neither of them has ceased parental responsibility and neither of them wishes to.
EVIDENCE
The applicant’s father gave evidence at the hearing. He told the Tribunal that the current arrangements for the applicant have been in place since December 2016.
Prior to the applicant’s first NDIS plan, he received disability support which was authorised and funded by the HCWA initiative. At various times those services included occupational therapy, speech therapy and advice on diet and continence. The father suggested that he and the mother were able to consult and to coordinate delivery of those services. The father was involved in the discussions for transition of the child from the HCWA program to the NDIS.
The applicant’s father sought self-management of the applicant’s NDIS plan. In evidence he explained his rationale for self-management. He considers that it is best for the applicant. He wants the applicant’s best interests to be protected. He said that he is willing to do all the paperwork. He considers that the self-management of plan enables the maximum flexibility in choosing suitable service providers in a timely way.
The applicant’s father acknowledged that none of the funding under the first and second plans had been expended. This was largely because of the outbreak and impact of the COVID-19 pandemic and the applicant’s low immune system. Throughout 2020, the applicant’s schooling was interrupted significantly. The nature and extent of the disruption varied; however, it was continuous. During a period of total lockdown, the applicant’s school was closed for a term and the parents provided home schooling as best they could. For one week the father would coordinate and supervise the home schooling, and on the alternate week the mother would do so. The father mentioned the challenges of providing schooling at home for a child with ASD who has problems with concentration. When the child was able to attend school following the easing of restrictions from the lockdown, he had support from teacher’s assistants on a one-to-one basis. Those assistants who provided specialist support at school are listed in the NDIS plans. They provided support which included assistance with writing, spelling, social skills and various other activities and tasks.
Despite the practical difficulties caused by COVID-19, which included problems of getting one-to-one, in person clinical contact with therapists, the applicant’s father was adamant that his son is progressing well at school and the school has confirmed in writing that it had no current concerns about his progress. In considering other services for his son, he said the focus was on swimming lessons with techniques for safety and survival together with the types of allied health services which had been in place under the HCWA funding. Although none of those services have been implemented during the life of the NDIS plans, enquires have been made and an appointment with a service provider was made and subsequently cancelled because the applicant was ill.
The applicant’s father gave evidence about his extensive business experience. He has been self-employed for decades and has experience as a company director. He understands accounting, banking systems and financial administration together with the need to comply with various regulatory requirements and criteria. He has carried out significant voluntary work which has included managerial and administrative contributions.
The applicant’s father considers that he has a manageable relationship with the applicant’s mother which is sufficiently sound and collaborative to ensure coordination and implementation of the NDIS plan, both now and in future. He considers that he and the mother can agree on decisions about the appropriate supports. He considers that there is an amicable parenting relationship in relation to identifying and accessing disability services for their child. He considers that consultations between the parents on those matters can adequately and openly take place through phone calls, text messages and joint attendance at appointments. If there is disagreement about services, both parents will seek professional advice about them. He states that there is no prospect of reconciliation between the parents.
The applicant’s mother confirmed the general theme of the father’s evidence about their son’s progress at school during the difficult times and challenging environment which COVID-19 caused throughout 2020. She confirmed that he had made good progress at school and the specialised services which he has received at school are beneficial in providing him with a positive and worthwhile routine. She confirmed that he has missed appointments because of illness and COVID-19 restrictions. She said she was not keen on his return to swimming lessons because of difficulties with his immune system. Progress in seeking occupational therapy services has occurred and she envisages that he will receive those services soon. She said that there have been enquiries about the psychology assessment and services.
Prior to the hearing the applicant’s mother confirmed in writing that she and the applicant’s father do not have an amicable coparenting relationship.[19] The applicant’s mother also gave evidence at the hearing. She told the Tribunal that she does not believe there is an amicable relationship between her and the applicant’s father. Amongst other things, she tends to withhold comments and viewpoints during joint meetings and planning conversations about services for the applicant as she is apprehensive of having her opinion discounted.
[19] Exhibit 2, p 339.
The applicant’s mother wants the NDIS plan to be completely plan managed as it was in the first plan. She considers it would be the most effective way of ensuring that the applicant is accessing agreed services with payment and processing controlled by a plan manager. While she did not consider it to be ideal, she was prepared to accept the provisions in the second plan which, in effect, authorised an equal split between plan management and self-management. She thought it might satisfy the father to have half of the plan self-managed. She told the Tribunal that she does not think self-management of all the plan will work satisfactorily. One of her concerns is her understanding about payment upfront in self-managed plans along with issues about accessing the NDIA portal, arranging reimbursement and managing the administrative and financial components.
WITNESSES
Before the hearing commenced, the applicant’s father identified four witnesses whom he considered should provide oral evidence. They were the applicant’s mother, a solicitor acting for the NDIA, a Tribunal registrar and an employee / delegate of the NDIA. It was not a request to summon these persons as it was expressed, in another way, as a requirement which the applicant’s father perceived that the NDIA solicitor, the NDIA delegate and the Tribunal Registrar are “…all Commonwealth employees… under their terms of employment there is an obligation and requirement to attend a Commonwealth hearing providing it is lawful and reasonable”.[20] Submissions were made on the first day of the hearing about the potential witnesses and the relevance of evidence that they might provide.
[20] Exhibit 2, p 361.
As it happened, the applicant’s mother elected to give evidence. That was her choice which was properly exercised.
The applicant’s father nominated a solicitor who is employed by the NDIA as a proposed witness. The solicitor was representing the NDIA during the pre-hearing matters. Prior to the hearing the solicitor wrote to the applicant’s father. In that correspondence the solicitor wrote that discussions which are held during the Tribunal’s case conferences are confidential. Secondly the solicitor wrote that “…as the legal representative of the respondent, I have an obligation to maintain legal professional privilege and any evidence I am asked to give will be qualified by that”.[21]
[21] Exhibit 2, p 365.
It appears that the applicant’s father wanted the Conference Registrar to give evidence about pre-hearing matters, which included processes, documentation and discussions. The applicant’s father indicated his concerns on various occasions in various ways. As an example, the applicant’s father wrote in his response to the NDIA Statement of Facts, Issues and Contentions “… proper and fair process has not occurred at the point of conciliation.”[22]
[22] Exhibit 2, p 349.
The applicant’s father was referred to s34E of the AAT Act in relation to the inadmissibility of evidence of things said and done in earlier alternative dispute resolution processes such as conferencing:
34E Evidence not admissible
(1) Evidence of anything said, or any act done, at an alternative dispute resolution process under this Division is not admissible:
(a)in any court; or
(b)in any proceedings before a person authorised by a law of the Commonwealth or of a State or Territory to hear evidence; or
(c)in any proceedings before a person authorised by the consent of the parties to hear evidence.
Exceptions
(2) Subsection (1) does not apply to prevent the admission, at the hearing of a proceeding before the Tribunal, of evidence if the parties agree to the evidence being admissible at the hearing.
(3) Subsection (1) does not apply to prevent the admission, at the hearing of a proceeding before the Tribunal, of: (a) a case appraisal report prepared by a person conducting an alternative dispute resolution process under this Division; or
(a)…
(b)a neutral evaluation report prepared by a person conducting an alternative dispute resolution process under this Division;
unless a party to the proceeding notifies the Tribunal before the hearing that he or she objects to the report being admissible at the hearing.
There was not an agreement between the parties for evidence to be given at the hearing about pre-hearing processes conducted by the Conference Registrar in which the NDIA solicitor was acting. Even if there was such an agreement, the relevance of the proposed evidence would still require analysis. There was nothing to suggest that such evidence would be relevant, and no reason was suggested to indicate that it could assist in clarifying the issues in this proceeding.
Finally, the applicant’s father identified an NDIA delegate as a proposed witness to give evidence about conversations which took place in February 2020 in relation to the outcome of the NDIA internal review about plan management. At that stage the NDIA was about to finalise its decision and confirm it with the parents.
The first conversation took place between the NDIA employee and the applicant’s mother on 20 February 2020 about the internal review outcome. The notes[23] of that conversation are included in the material provided to the Tribunal for this hearing. They comprise typed notes occupying about one quarter page
[23] Exhibit 1, p 307.
Subsequently, a conversation took place on 21 February 2020 between the same NDIA employee and the applicant’s father. The NDIA delegate made notes of that conversation. Those notes were described as an extract of interaction records and they are included in the documents provided to the Tribunal.[24] They comprise typed notes which occupy about one and a quarter pages.
[24] T9, T documents, p 169.
Having heard submissions from the parties at the beginning of the hearing, the Tribunal deferred making a ruling about the proposed witness, the NDIA delegate, until the oral evidence of the applicant’s father and the applicant’s mother had been completed. The concerns which the father had about the notes of his conversation involved questions about the accuracy of the record and possible adverse imputations about him. He was also concerned about the order in which the NDIA employee contacted the parents. In addition, he believes that the telephone call made to him was recorded and he wants the transcript.
It is understandable that the applicant’s father could hold a concern about the note of the conversation between him and the NDIA delegate. It is reasonable to assert that some entries in the notes could be interpreted in a manner unfavourable to him. If the notes are accurate then there is a point in the conversation when he expressed his concern in strong language about the NDIA’s decision
During the hearing it was made clear to the applicant’s father that the issue for the Tribunal and the decision which the Tribunal makes is a decision on the evidence about the substantive issues regarding plan management. It transpired at the end of the second day of the hearing that nothing arose out of that evidence which suggested that further analysis of the detail of the telephone conversations would assist the Tribunal to make the correct or preferable decision about management of the funded supports for the child almost 12 months after those conversations. Indeed, towards the end of the hearing the applicant’s father could not give any details of the substance of his concerns about the telephone conversations or his reasons for wanting the NDIA delegate to give evidence.
Section 33(c) of the AAT Act provides that “…the Tribunal is not bound by rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.” Informing itself further about the details of the two telephone conversations does not assist the Tribunal’s review of the NDIA’s decision. Moreover, it is important to emphasise that the Tribunal’s decision in this matter is neither based upon the notes of the two conversations nor influenced by them in a manner adverse to either of the parents.
DISCUSSION
The NDIA relies upon the apparent level of conflict between the applicant’s parents in support of its submission that they do not have capacity as joint child representatives to manage the funding of the NDIS supports. The NDIA points out that the parents have not achieved agreement about the provider of funded supports and no supports have been accessed under the first and second NDIS plans. In these circumstances the NDIA asserts that there is an unreasonable risk for the child.
Having heard the evidence of the applicant’s parents, it seems that several factors have contributed to the current situation. This was the first experience for both of them in dealing with the NDIA and managing and implementing an NDIS plan. This was a new process and it differed considerably from the previous involvement in the HCWA arrangements. Undoubtedly, the challenges which arose out of the COVID-19 pandemic lockdown contributed to the difficulties in assessing and identifying appropriate funded supports and then putting them into place. That was an obstacle for the applicant’s parents, and they used their best endeavours to care for the applicant and address additional special needs which accompanied prolonged care at home and the demands of home schooling. When the applicant was at school it appears that he was progressing well and specific supports for disability which were provided for him during school hours were beneficial. At least to some extent the goals in the second NDIS plan, which cover the 2020 school year, were supported with some success.
The Tribunal accepts the evidence of the applicant’s mother to the effect that she has concerns about self-management of the plan, be it self-management of all the plan or half of the plan. Those concerns are legitimate and honestly held. Her perception of her capacity to undertake responsibilities for self-management in collaboration with the applicant’s father does not coincide with his perception. He considers that the collaborative endeavour is workable. She disagrees. The reasons for the disagreement need not be canvassed in detail here. The focus must be the best interests of the applicant and the necessity for removing unreasonable risks to the applicant in the formulation of the NDIS plan.
The management of the plan funding has remained as a risk throughout. The NDIA considered that there would be an unreasonable risk for the entire plan to be self-managed. Ideally that risk would be reduced by endeavouring to reflect both parents’ wishes. Hence, the equal division between self-management and plan-management was endorsed by the NDIA as the outcome of an internal review. However, by the time of this hearing, the NDIA has concluded that the current arrangements for management of the plan are not working. Therefore, it follows that the reviewable decision is no longer correct or preferable and the NDIA concedes as much.[25]
[25] Exhibit 1, p 292.
Perhaps in recognition of that concession and interpretation of the emerging situation, the NDIA renewed a request towards the end of the first day of the hearing which it had made shortly prior to the hearing. That was a remittal request under s42D(1) of the AAT Act. On each occasion, the Tribunal declined to exercise the power to remit the matter to the NDIA for further consideration at those late stages substantially because of the timing of the requests. More pressing was the need to proceed to the hearing and to continue with it once it was underway. However, during the remittal request the NDIA contended that the decision under review should be varied to approve a statement of participant supports providing for funding in the applicant’s plan to be managed by a registered plan manager, with funding for level two and specialised support coordination to assist the applicant to access funded supports over the next 12 months.

Putting to one side the process of a remittal and addressing the substantive proposal for a new statement of participant supports as outlined, the applicant’s mother agrees with the proposal, but the father does not.
Incorporating support coordination into a plan which is managed by a registered plan manager would mitigate the risk for the applicant and assist the parents in their understanding of the NDIS plan, the ways in which it can be implemented and the processes of managing it. The idea of specialist support coordination is to address more complex situations through provision of specialist, allied health support to assist with the identification and implementation of services, such as occupational therapy and psychology. It is a safeguard which should assist in the funded provision of informed, professional advice on a practical footing for the implementation of the NDIS plan. The goals in the plan would remain as they are, and the plan would be the best way of implementing objects in s5(f) of the NDIS Act, including those that are designed to:
(i)Promote the child’s development; and
(ii)Strengthen, preserve and promote positive relationships between the child and the child’s parents, family members and other people who are significant in the life of the child.
On consideration of all the evidence, the Tribunal is satisfied that there is an unreasonable risk for the purposes of s44(2)(a) of the NDIS Act. In order to manage the risk to the applicant and to ensure the applicant receives the supports funded in his NDIS plan, the Tribunal considers that the appropriate course is for the funding for the supports in the applicant’s plan, other than funding for the plan management itself, to be managed wholly by a registered plan manager. It is a suitable strategy to mitigate risks for the applicant and to enable him to receive supports which are funded in his NDIS plan.
The current plan has a review date of 23 February 2021. That plan has not been replaced by another plan. A plan’s review date is one of the five items in a statement of participant supports and it is, therefore, a part of the reviewable decision before the Tribunal. The NDIA suggests a new review date in 12 months’ time. The Tribunal agrees with that proposal as it provides time and opportunity for the plan to be managed and implemented with the injection of knowledge and guidance through support coordination. This does not mean that subsequent plans will inevitably be plan-managed. It does not preclude self-management at some time in the future, in fact it could be an opportunity over the next 12 months to gain experience and understanding in plan management which could enable the parents to move to self-management in the years ahead.
DECISION
The Tribunal sets aside the decision under review in this application and in substitution approves a statement of participant supports in the NDIS plan 24 February 2020 to 23 February 2021 as follows:
(a)funding in the applicant’s plan to be managed by a registered plan manager;
(b)a review date that is 12 months after the day on which the statement of participant supports is approved;
(c)the applicant’s plan include funding for support coordination as follows to assist the applicant to access funded supports:
(iii)50 hours of Level II Support Coordination in accordance with the NDIS Support Catalogue and
(iv)30 hours of specialist support coordination in accordance with the NDIA support catalogue; and
(d)all other supports in the applicant’s current NDIS plan be continued pro-rata in accordance with the NDIS support catalogue.

74.

75.

76.

77.

78.

79.     I certify that the preceding 73 (seventy-three) paragraphs are a true copy of the reasons for the decision herein of I Thompson, Member

.......................[sgd]..............................
Associate
Dated: 18 February 2021

Dates of hearing: 26-27 November 2020; 28-29 January 2021

Applicant:
Other parties:

Represented by father

Self-represented, by video

Solicitor for the Respondent:

Counsel for the Respondent:

National Disability Insurance Agency

Ms A Haban-Beer

[2021] AATA 256

18 February 2021

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