QKNJ and National Disability Insurance Agency

QKNJ and National Disability Insurance Agency [2023] AATA 794 (12 April 2023)
Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL )

) No: 2021/2127

National Disability Insurance Scheme Division )
Re: QKNJ
Applicant

And: National Disability Insurance Agency
Respondent
DIRECTION
TRIBUNAL:  Senior Member P J Clauson AM
DATE OF CORRIGENDUM:            14 April 2023
PLACE:           Brisbane

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application.

......................[SGD]........................
Senior Member P J Clauson AM
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2021/2127
Re:QKNJ
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Senior Member P J Clauson AM
Date:12 April 2023
Place:Brisbane

The decision is set aside and remitted for reconsideration by the CEO on the terms below outlined.
......................[SGD]........................
Senior Member P J Clauson AM
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – SDA accommodation – suitable SDA building type – reasonable and necessary supports – appropriate SDA housing category – SDA Rules – sufficient weight given to applicant submissions – application of the SDA Price Guide – Tribunal jurisdiction to review funding under SDA Price Guide
Legislation
National Disability Insurance Scheme Act2013 (Cth)
National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020
Pricing Arrangements for the Specialist Disability Accommodation 2022 – 2023
Cases
Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; 266 CLR 250
Kennedy v. The National Disability Insurance Scheme [2022] AATA 265
McGarrigle v. The National Disability Insurance Scheme [2017] FCA 308
REASONS FOR DECISION
Senior Member P J Clauson AM
FACTUAL BACKGROUND

The applicant is a 49-year-old gentleman who is a participant in the National Disability Insurance Scheme (NDIS).
The applicant currently has an NDIS Plan which commenced on 17 August 2022.[1]
[1] T Documents, document number 8 in further materials.
The applicant’s plan sets out, inter alia, that his capital supports consist of home modifications, Specialist Disability Accommodation (SDA) up to $58,630.00 per year (required) and that the applicant is eligible for SDA of design category high physical support, building type house and one resident with overnight on-site assistance (OOA) with a notional maximum budget calculated on the basis of a one resident townhouse/duplex subject to the enrolment of the dwelling and application of Appendix G. The location is Queensland, Statistical Area Level 4 (SA4), 0003 – Camp Hill, Brisbane. The applicant’s Statement of Support states that he is able to have access to alternative SDA categories and locations within his assessed amount. The Plan states further that the quote required for stated supports will be NDIA managed and for Specialist Disability Accommodation (SDA).
The parties have agreed that the applicant should be entitled to the type of property described above; however, the applicant does not agree with that part of the SDA support which confines the type of house to a budget calculated as described; namely with a notional maximum budget calculated on the basis of a one resident townhouse/duplex subject to the enrolment of the dwelling and application of Appendix G.
The applicant’s contention is that the Plan has not provided a support by way of an SDA building type that is, in the applicant’s discrete circumstances, reasonable and necessary in that it does not provide for an SDA building type of a house with two bedrooms and consequently the support is not reflective of the type of SDA required.
ISSUES
The issues remaining to be resolved are:
(a)Whether it is appropriate for the SDA building type to be of a house with the inclusion of a second bedroom; and
(b)Whether the notional maximum budget for SDA should be calculated on the basis of:
(i)A one resident townhouse/duplex; or
(ii)The amount calculated for a two-resident house.
LEGAL FRAMEWORK
When an applicant applies to become a participant in the NDIS, the Chief Executive Officer (CEO) of the NDIA (the Agency) has to be satisfied that the applicant meets the access criteria. In order to meet these criteria, an applicant must satisfy the CEO that those matters contained in sections 21 to 25 of the Act are met.
The applicant in this matter has met the access criteria and is an accepted participant.
The applicant has sought review of the CEO’s decision in relation to the inclusion of supports in his plan made pursuant to section 100(6) of the National Disability Insurance Scheme Act2013 (the NDIS Act).
The decision under review is a reviewable decision as defined in section 99, item 4 of the Table of Reviewable Decisions of the NDIS Act:
4. a decision to approve the statement of participant supports in a participant's plan
The applicant has enlivened their right to review by bringing an application for review under section 103 of the NDIS Act.
Because this application for review is an SDA matter, the CEO makes a determination as to what supports the applicant should receive by referencing the National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020 (the SDA Rules).
Division 2 outlines an applicant’s eligibility to receive support for SDA, and section 11 outlines the prerequisite qualification criteria that the CEO must be satisfied of to accept an applicant’s eligibility for SDA. Section 11 states:
11 Eligibility to receive support for specialist disability accommodation
A participant is eligible to receive support for specialist disability accommodation under the National Disability Insurance Scheme if the CEO is satisfied that:
(a) the participant:
(i) has an extreme functional impairment (see section 12); or
(ii) has very high support needs (see section 13); and
(b) the participant meets the SDA needs requirement (see section 14).
Section 12 of the SDA Rules sets out the conditions under which the term “extreme functional impairment” is defined, and those matters to which the CEO may have regard when assessing whether an applicant has extreme functional impairment.
Section 13 of the SDA Rules likewise defines the circumstances giving rise to a participant having very high support needs.
Section 14 of the SDA Rules sets out the benefits that would be enhanced by the provision of combined specialist disability accommodation and other supports when compared to other supports alone when a participant meets the SDA needs requirements. The section is comprehensive in its purview as set out as follows:
14 When a participant meets the SDA needs requirement
(1) A participant meets the SDA needs requirement if, when compared to other supports alone, combined specialist disability accommodation and other supports would:
(a) better assist the participant to pursue the goals, objectives and aspirations set out in the participant’s statement of goals and aspirations; and
(b) be more effective and beneficial, where possible, in:
(i) mitigating or alleviating the impact of the participant’s impairment upon the participant’s functional capacity; and
(ii) preventing the deterioration of the participant’s functional capacity; and
(iii) improving the participant’s functional capacity; and
(iv) maintaining or promoting the participant’s ability to build capacity, including in the medium or long term; and
(v) maintaining or promoting the participant’s opportunities to develop skills; and
(c) if the participant has very high supports needs—be more effective and beneficial, where possible, in:
(i) reducing the participant’s future needs for supports which might be required due to inappropriate accommodation; and
(ii) assisting the participant to pursue goals related to life opportunities and life transitions; and
(d) if the participant has an extreme functional impairment—be more effective in providing the participant with stability and continuity of support; and
(e) represent better value for money.
(2) For the purposes of paragraph (1)(e), regard must be had to the following matters if the participant has very high support needs:
(a) whether combined specialist disability accommodation support and other supports would be likely to substantially improve the life stage outcomes for, and be of long‑term benefit to, the participant;
(b) the cost of providing the participant with supports needed to live in accommodation other than specialist disability accommodation, taking into account:
(i) whether those supports may be shared with other participants; and
(ii) limitations of the participant’s informal support network.
Once it is established that a participant is eligible for SDA, section 15 of the SDA Rules is engaged and defines those “matters to be determined by CEO in respect of each eligible participant.” It is stated in subsection 15(1) that:
(1) The CEO must determine the following matters for an eligible participant:
(a) the SDA building type that is appropriate to support the eligible participant (see section 16);
(b) the SDA design category that is appropriate to support the eligible participant (see section 17);
(c) the area in which the specialist disability accommodation is to be located (see section 18);
(d) whether the specialist disability accommodation is to be provided as an in‑kind support.
Note: The CEO may determine more than one SDA building type, SDA design category or location in relation to an eligible participant. The SDA building type, SDA design category and location must be specified in the eligible participant’s plan: see section 19.
In subsection 15(2) note 2 it is stated:
The matters determined by the CEO under this section affect the amount of support that can be paid to an eligible participant for specialist disability accommodation. The SDA Price Guide sets out the maximum amount of support that is available for specialist disability accommodation.
Those matters “to be determined by CEO in respect of each eligible participant” in section 15(1) are comprehensively outlined in:
·Section 16: SDA Building type;
·Section 17: SDA Design category; and
·Section 18: the area in which SDA is to be located.
Finally, section 19 requires that the eligibility to receive SDA is to be included in a participant’s plan in the following terms:
19 Eligibility to receive support for specialist disability accommodation to be included in plan
(1) The plan for an eligible participant must include:
(a) a statement that the eligible participant is eligible to receive support for specialist disability accommodation; and
(b) the matters determined for the eligible participant by the CEO under subsection 15(1), and the amount of support available to the eligible participant for specialist disability accommodation; and
(c) if the CEO makes a determination under subsection 15(2) in relation to the eligible participant—the following:
(i) the SDA building type, SDA design category and location of the dwelling specified in the notice given to the CEO under subsection 15(2);
(ii) the amount of support available to the eligible participant in relation to the dwelling specified in the notice.
(2) The plan may specify the SDA provider that is to provide specialist disability accommodation to the eligible participant.
THE PARTIES CONTENTIONS
The Applicant’s Contentions
The parties in this matter share common ground insofar as they agree that the appropriate type of SDA is a house with a design category of High Physical Support.
The parties’ point of contention arises around the CEO’s determination of a suitable SDA building for the applicant, that being of:
a) SDA design category: High Physical Support With OOA
b) SDA building type: Apartment, 2 bedrooms, 1 resident
c) SDA location: Queensland Statistical Area Level 4 (SA4), 303[2]
[2] Tribunal Book T4C, page 48
The applicant agrees with the CEO’s determination that the appropriate SDA is a house with a High Physical Support design category, but contends that the determination is incorrect insofar as the type of house for which the applicant, under section 34(1) of the Act, meets all the legislated criteria to be a reasonable and necessary support is a house one resident, two bedrooms.[3]
[3] Exhibit 2, page 5 paragraph 29.
The applicant contends that the evidence supports the contention that the provision of a second bedroom is appropriate to be included in the SDA building type because it complies with section 16 of the SDA Rules in that it:
(a)is the applicant’s preference (16(a)) outlined in the applicant’s second SFIC at [128].
(b)provides features of the building type in relation to the applicant’s needs (16(b)) outlined in the applicant’s second SFIC at [130], [131],[132], [133], [134].
(c)is an appropriate support model and meets the applicant’s support needs (16(c) and (d)) outlined in the applicant’s second SFIC at [136].
(d)facilitates past, established or planned connections particularly cultural connections (16(g)) outlined in the applicant’s second SFIC at [140]
(e)reduces or mitigates risks to the applicant (16(h)) outlined in the applicant’s second SFIC at [143].
(f)positively impacts on the applicant’s capacity and capabilities (16(j)) outlined in the applicant’s second SFIC at [146].
(g)facilitates or sustains informal supports 16(k) outlined in the applicant’s second SFIC at [149].
(h)facilitates the provision of other supports required by the applicant (16(l)) in the applicant’s Second SFIC at [151], [152].[4]
[4] Exhibit 2, page 5 paragraph 30
The applicant, also in his contentions, relies upon section 19 of the SDA Rules to support his argument that the decision before the Tribunal is a “reviewable decision” within the definition of section 99(1) of the NDIS Act.
The applicant contends that the SDA Rules require that a plan developed for an SDA eligible participant pursuant to section 32(2) of the NDIS Act “must include”:
(c)       If the CEO makes determination under sub-section 15(2) in relation to the eligible Participant – the following:
(i)           The SDA building type, SDA design category and location of the dwelling specified in the Notice given to the CEO under sub-section 15(2);
(ii)          The amount of support available to the eligible Participant in relation to the dwelling specific in the Notice.
It is the applicant’s contention that section 19 therefore grounds the Tribunal’s jurisdiction to review the applicant’s Plan of Supports in all its aspects regarding SDA building type and the amount of the support in dollar terms.
The Respondent’s Contentions
The respondent contends that in an SDA matter, what the CEO determines is governed by reference to the SDA Rules Part 2, section 11 which sets out the eligibility criteria for referencing ‘support’ for SDA and that the decision to include (or not include) SDA in a participant’s plan is a decision about what is included in the Statement of Participant Support.
It is the respondent’s contention that once a participant is deemed eligible for SDA, section 15 of the SDA Rules sets out the matters for the CEO’s determination as referenced earlier herein. The CEO’s determination does not include a monetary calculation to attach to the support. That is a function of applying the formulaic process under what was the SDA Price Guide, which is now termed “Pricing Arrangements for the Specialist Disability Accommodation 2022 – 2023” (the Pricing Arrangements).
The respondent contends that once the CEO determines the type of SDA that is reasonable and necessary for a participant, the maximum monetary figure applicable to that SDA is determined by application of the Pricing Arrangements to the type of dwelling.[5]
[5] SDA Rules, Part 2 section 9.
The respondent contends that this distinction between the participant’s support and the amount of funding is “neither pedantic nor artificial” in nature, and relies upon the outline ad explanation by Mortimer J. in the Federal Court in the matter of McGarrigle v. National Disability Insurance Agency [2017] FCA 308; (2017) 252 FCR at 121 at [88]:
‘Section 13 [NDIS Act] expressly indicates that a “support” might be a service, or it might be an activity. In my opinion, although s 14 (which deals with funding by the Agency of others to assist the participant rather than the Agency assisting the participant directly) is expressed purposively, its subject matter is also “support” – whether by way of services or activities or any other matter that assists a person with disability in a way that is consistent with the general principles set out in s 4. The word “support” must be given a broad construction in this context, and there is no need for the purposes of this proceeding to seek to give it any comprehensive meaning. Rather, the point to be made is that it is a practical description of the means by which a person with disability is assisted. It is not intended, in my opinion, to encompass funding, especially because what s 14 contemplates is that the Agency will “fund” a support. The Agency cannot “fund” funding’.
The respondent submits that the decision is instructive in this matter, which involves an SDA decision, to illustrate that where the CEO’s power is defined so precisely so as to exclude calculation of the amount of funding, the distinction between approving the SDA’s specific content of the Statement of Participant Supports on the one hand, and the calculating of the amount of funding to be attached to those supports on the other, is unambiguous.
The respondent contends that not everything included in a plan may necessarily be included in the Statement of Participant Supports, in response to the applicant’s contentions in relation to the effect of section 19(1)(b) of the SDA Rules, where the applicant relies upon the words in that section:
“The amount of support available to the eligible participant for specialist disability accommodation.” [6]
[6] Exhibit 2, applicant’s Third SFIC at [22].
Further, by way of example, the respondent notes that a participant’s plan must include certain things that do not necessarily consist of the applicant’s Statement of Supports. Section 35(1) of the NDIS Act prescribes that a participant’s plan must include a statement prepared by the participant, outlining their goals and aspirations. The respondent asserts that section 33(7) of the NDIS Act requires that a participant’s plan must include anything prescribed by the NDIS Rules and thus, in this matter, the amount of the support identified in the plan does not automatically make that amount part of the Statement of Supports.
The respondent contends that the parameters of review jurisdiction with regard to the issues before the Tribunal in this matter are:
“…. conterminous with the CEO’s role.”[7]
In other words, the decision-making task of the Tribunal regarding SDA supports ends when the matters specified in section 15 of the SDA Rules have been determined. This is reflective of the scope of the CEO’s decision-making obligations and powers.
[7] Exhibit 3, respondent’s submissions, page 4 at line 1.
It is the respondent’s contention that this view of the decision-making role of the Tribunal has been clearly enunciated by the High Court in Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; 266 CLR 250 by Justices Bell, Gageler, Gordon and Edelman JJ where they stated at [51]:
“[E]xcept where altered by some other statute…the jurisdiction conferred on the AAT by ss 25 and 43 of the AAT Act, where application is made to it under an enactment, is to stand in the shoes of the decision-maker whose decision is under review so as to determine for itself on the material before it the decision which can, and which it considers should, be made in the exercise of the power or powers conferred on the primary decision-maker for the purpose of making the decision under review. The AAT exercises the same power or powers as the primary decision-maker, subject to the same constraints. The primary decision, and the statutory question it answers, marks the boundaries of the AAT’s review. The AAT must address the same question the primary decision-maker was required to address, and the question raised by statute for decision by the primary decision-maker determines the considerations that must or must not be taken into account by the AAT in reviewing that decision”. [Emphasis added, footnotes omitted.]
CONSIDERATION

The parties agree that the appropriate SDA accommodation for the applicant’s requirements is, inter alia, a house, calculated by reference to one resident with onsite overnight assistance and a design category of high physical support.
The disagreement rests on the question as to whether the supports approved in relation to the approved SDA for the applicant are, in the applicant’s discrete circumstances, reasonable and necessary. Secondly, the other question for the Tribunal is if the supports as approved are not reasonable and necessary in the context of the approval as it applies to the applicant, as alluded to above, does the Tribunal’s jurisdiction extend to reviewing the monetary allocation for funding given to the approved supports pursuant to the Pricing Arrangements for Specialist Disability Accommodation 2022 – 23 (the SDA Price Guide).
The applicant has outlined very eloquently in his amended SFIC submissions dated 25 March 2022 (the Second SFIC) the matters which, in his circumstances, support the provision to him of an appropriate SDA commensurate to his circumstances and to be considered by the CEO in the decision-making process.
Although all of the matters to be regarded under section 16 of the SDA Rules must be so considered, it is not the rule that each must bear equal weight to the others in the mind of the decision-maker. The decision-maker need only to consider these matters as they each contribute in some way to reaching either a positive or a negative outcome for an applicant. It stands to reason that some matters may have more significance for one participant than they may have for another, however; when considered as a whole may lead to the CEO to make a positive decision for SDA.
The NDIS legislation is designed to be beneficial in nature and to promote a system whereby those who suffer from impairments are supported to live the best possible life they are able and to take their place beside others who are not so afflicted.
The applicant/participant in this matter is a person who is possessed of a strong intellect as witnessed by his able and comprehensive submissions and determination, with the appropriate supports, to continue along the path of life in as normal manner as is possible. The Tribunal notes the applicant’s reference to the words of Mortimer J. in the matter of McGarrigle v. The National Disability Insurance Scheme as quoted with approval by this Tribunal in Kennedy v. The National Disability Insurance Scheme:
“As to preference, Justice Mortimer in McGarrigle v National Disability
Insurance Scheme (“McGarrigle”) observed that the goals, objectives and
aspirations of a person with a disability are a core aspect of the participant
plan and the supports which are approved are intended by the scheme to
support pursuit of those goals, objectives and aspirations”[8].
[8] [2022] AATA 265 at [67].
The applicant’s Second SFICs document lays out in detail the reasons why it is appropriate for the applicant to be funded for an SDA consisting of a house, one resident, two-bedrooms.[9] Mr Mullins, Counsel for the applicant, referenced these submissions during the course of the hearing.[10] The Tribunal has considered these submissions carefully during its deliberations.
[9] Applicant’s Second SFIC, page 26 at 125
[10] Transcript of Proceedings, page 9, at lines 13 to 21.
The Tribunal has decided that there are certain of the applicant’s submissions to which insufficient weight has been given by the decision-maker in deciding what type of SDA building type is suitable for the applicant.
The applicant is a family man, with his wife and four children forming the family unit. It is important that the supports provided underpin this structure as an important and integral part of his wellbeing to maintain his mental health and social participation.[11] The Tribunal agrees with this principle as enunciated in Ms Brook’s report.
[11] T documents T4D, pages 114 to 115: Tiffany Brook, OT report dated 23 April 2020
The Tribunal has considered the physical limitations placed upon the applicant by his impairments and it is obvious from that material that the applicant does require a large number of appliances of an assistive description.
It is also clearly demonstrated that an appropriately designed residence for the applicant requires operational space to accommodate his wheelchair mobility and office requirements given his ongoing occupational commitment. The Tribunal notes also the requirement of a hoist and full assistance for future transfers, and that he has an array of prosthetics that need to be stored when not in use.
The material has also emphasised that the applicant’s wife is a major participant and assistant in his day-to-day affairs of life. The Tribunal also considers that it has to be acknowledged that her participation in caring for the applicant is also to be balanced by her own requirements around her employment and the need from time to time for respite from her voluntary carer’s role. This will require a third-party carer to be available to the applicant, particularly overnight on those occasions when his wife is unable to assist. The second bedroom would be essential for this arrangement to be fulfilled.
The Tribunal also accepts the applicant’s contention that the need for a second bedroom is appropriate for the storage purposes outlined and an available area within that for the office equipment and work and life and leisure purposes. The applicant has relied upon the considerations in the matter of Kennedy in support of his contention that this is a relevant consideration to the determination of an appropriate building type stock.[12]
[12] Kennedy v. NDIA [2022] AATA 265 at [37].
Sections 24(1) and (2) of the SDA Rules set out the requirements that must be satisfied for SDA support specified in an eligible participant’s plan to be funded under the NDIS, and those matters to which the CEO must have regard when making a funding decision.
The Tribunal has, upon further consideration of the applicant’s request, examined the question of adequacy of an SDA support to be provided in his particular situation. This particular consideration arises by way of the operation of section 24(2)(g) of the SDA Rules relating to the funding of specialist disability accommodation.
In particular where, as here, the applicant has clearly indicated his desire to live with his wife and his four children in as close a circumstance to normality as can be facilitated, the CEO must have regard to the adequacy and configuration of the SDA.
It is the view of this Tribunal that paragraph 24(2)(g) should have been accorded greater regard as is required when being applied to the particular circumstances of this applicant. It is clear to the Tribunal that the SDA chosen by the CEO to fulfil the funding needs of this applicant namely, a building type of villa/duplex, one resident, is not a suitable category to adopt and that, by way of coming to a funding solution, the artifice of attempting to apply the SDA Price Guide for the villa/duplex category to a house, one resident, high physical support with OOA has had a perverse outcome. It has resulted in the decision to provide an unsuitable type of accommodation and an inadequate funding proposition
The Tribunal finds that an SDA house, one resident, is not the appropriate SDA category for this participant. The Tribunal further finds that an SDA house for one resident, two-bedrooms with high physical support and with OOA is the appropriate, reasonable and necessary support for this particular participant.
The respondent has contended that the appropriate SDA is a villa/duplex, one resident, and then applied the SDA Price Guide to, in simple terms, a house, one residence.
The question arising regarding the Tribunal’s jurisdiction to review firstly, the decision of the CEO regarding the category of SDA can be answered on the basis that the CEO has made a decision pursuant to the Act which allows review of a decision of the decision-maker to approve the Statement of Participant Supports in a participant’s plan pursuant to sub-section 33(2) of the Act. The Tribunal has decided that the jurisdiction to review this decision is available to it. Accordingly, for the reasons outlined earlier herein, it decides that the appropriate category of SDA suitable for the applicant is that which he has agitated for namely, a house, one resident, two bedrooms, high physical support with OOA.
Having decided the appropriate SDA category of accommodation for the applicant, the question of pricing needs to be addressed.
The respondent has contended throughout this matter that the question of pricing any accommodation under SDA falls to an application of the SDA Price Guide and further that the process attaching to the price of any SDA falls outside the purview of the Tribunal as the CEO’s responsibility ends with the decision of what SDA is appropriate on a case-by-case basis. Thus, it is contended that because the CEO’s role does not extend to applying the SDA Price Guide and setting the level of funding to be provided, the Tribunal’s jurisdiction does not run to a review of that process.
The Tribunal has perused the relevant legislative enactments around this SDA support and notes that the SDA Rules, at Part 1, Section 5, in the definitions, makes reference to:
“SDA Price Guide means the publication known as the National Disability Insurance Scheme Price Guide for Specialist Disability Accommodation, published by the CEO, as in force from time to time.”
A note to this definition states:
“The SDA Price Guide could in 2020 be viewed on the Agency’s website.”[13]
[13] >
Given this acknowledgement and the Agency’s Rules of the Guide being a publication of the CEO and as being “in force from time to time”, it is clear that the document is prepared within the Agency at the direction of and with input from the CEO. The document is also copyrighted to the NDIA.
This document is also a “living” document in as much that the updated and amended versions of the document are published “at least three times a year, on 1 July, 20 September and 20 March”. Such revisions would surely be created to accommodate changes in needs and innovation in categories of buildings. This flexibility is recognised in the SDA Price Guide at the end of Table 7 under the heading “Innovation”.
The Tribunal agrees with the applicant in relation to the document’s status, where in his Second SFIC he describes the SDA Price Guide in the following terms:
“There is no mention of number of participants or bedrooms within the Act or SDA Rules. This is a construct developed by the Respondent in the form of the SDA Price Guide.”[14]
[14] Applicant’s Second SFIC, page 26 at 122.
The Tribunal has also considered the publication which was provided to it by the applicant which sets out case examples of what the Agency would fund by way of SDA in particular individual circumstances. The relevant aspect outlined in this publication and shown in the “Our Guidelines” and “Would we fund it?” section of the NDIS Guidelines website outlines the hypothetical circumstances of Conrad, a fictitious person who, similarly to the applicant, requires a house, one resident and two bedrooms.
Conrad’s situation is he requires very high support needs, he utilises a significant quantity of assistive equipment and need sufficient space to set up for support staff and to provide safe and easy access to this equipment. Naturally, it is required to meet the NDIS funding criteria of helping Conrad:
·Pursue his goals and improve independent living skills;
·Improve his social and work activities;
·Effectively reduce the risks to the applicant’s and his support workers health and wellbeing;
·Be value for money insofar as the extra room is reasonable when comparing health and hygiene benefits for Conrad and his support workers versus the cost of alternative supports;
·Be something that the Agency is responsible for providing.
The example provided in the NDIS Individualised Living Options is totally reflective of this applicant’s particular circumstance, and based upon the material provided to it the Tribunal accepts that the five criteria outlined in the preceding paragraph have been satisfied.
In light of this extraordinary parallel, it is difficult to see, in light of the circumstances of the applicant, that a house, one resident, two bedrooms, has been so vigorously opposed simply upon the basis that the SDA Price Guide does not make reference to that building type category in Appendix B.
It is the Tribunal’s view that the Individualised Living Options document regarding SDA looks to an applicant’s requirements as opposed to attempting to fit the applicant’s circumstances into some form of standard category and then attempted to manipulate the funding around that decree. The Tribunal considers that the process as applied has been counter to the concept of beneficial legislation. The result should have reflected the satisfying of the applicant’s needs as far as is possible.
Of course, the Tribunal recognises that the Price Guidelines probably do, by and large, suit the circumstances of the majority of participants’ requirements. However, the Guidelines do recognise that there will always be exceptions to this. The applicant’s circumstance in this matter is one of those particular exceptions.
The Tribunal finds that the applicant’s circumstances fall within the Appendix B category of meeting the need for a flexible and innovative approach as contemplated within the Guidelines for Individualised Living Options, and reflected at the end of Table B of the SDA Price Guide.
The Tribunal having decided that the appropriate SDA for the applicant is a house, one resident, two bedrooms, high physical support with OOA, has now to examine the application of and status within the decision-making framework of the SDA Price Guide.
It is clear and not disputed by both parties that the SDA Price Guide in its present iteration does not contemplate the pricing arrangements for a house, one resident, two bedrooms, high physical support with OOA.
The SDA Price Guide appears to be a tool which has been developed by the NDIA in-house to try and establish a yardstick by which pricing can be established for various categories of SDA when it is agreed that an applicant should receive that type of support.
The respondent has contended that the process to establish the funding for SDA is not a reviewable decision as contemplated by section 100 of the Act and capable of founding a Review Application pursuant to section 103 of the Act.
The Tribunal, having considered the respondent’s contentions and those of the applicant on this question, and having given lengthy consideration to the materials set out in Appendix B, has concluded that the respondent’s representation is correct in part.
The CEO is responsible for considering the applicant’s request for SDA, and this is clearly a reviewable decision falling within the Tribunal’s jurisdiction. Further, as part of that decision-making process, it is necessary for any decision of a positive nature by the CEO to have any practical effect and to make the decision operative, funding is a necessary part of that decision.
The Tribunal does not, with respect, agree that this is a two-part process when deciding whether an applicant for SDA is approved for it. The decision has several steps to get to the point where the supports are considered reasonable and necessary. Funding is. in the view of the Tribunal, the last step in a continuum to be taken to complete the process of decision-making and is designed to ensure that the supports provided are adequate for the particular applicant.
The process, when followed, for SDA is analogous to that of a production line where sections of an item are put into assembly as it moves slowly along. Here, the final part of the process is determining what level of funding fits the final product.
The SDA Price Guide is the assembler’s tool to assist in the completion of the assemblage. The SDA Price Guide does not, by its very nature and practical circumstance, outline every possible new SDA category. It is designed to contemplate differing individual circumstances, such as those presenting in this particular matter.
Funding for SDA is acknowledged to be different from funding for supports in the general circumstances of the greater proportion of Participants under the NDIS. There are no hourly rates available for this type of support in this type of support and in this applicant’s case. The published material by the Agency recognises this in the example it provided in the information sheet where it outlined, almost word-for-word, this applicant’s circumstances as they applied to the fictitious Conrad. The scope of the CEO to decide on different categories or building designs is mentioned clearly in the “Innovation” section of Appendix B to the SDA Price Guide and states “determined on a case-by-case basis”. The phrase clearly reflects the purpose of the Act in operation.
The Tribunal considers that the funding does not form a reviewable decision as of itself. It forms, in matters such as this, an intrinsic part of the decision by the CEO which is made when approving SDA for an applicant in the circumstances of QKNJ. Funding must follow the form of the SDA provided for, if it does not, the SDA approved for an applicant could well be unfit for the purpose for which it is intended and for which the applicant met all the necessary criteria.
The Tribunal finds that in this matter the evidence indicates that the funding for an SDA category suitable for this applicant as being reasonable and necessary forms part of the CEO’s decision. The Tribunal does not therefore possess the jurisdictional imprimatur to review the level of funding on a standalone footing based upon the construct of the SDA Price Guide.
The Tribunal, having decided that the appropriate SDA which is reasonable, necessary and adequate for the applicant is a house, one occupant, two bedrooms, high physical support with OOA, decides that the decision of the CEO dated 29 March 2021 should be set aside and the matter remitted to the CEO for reconsideration on the basis of the SDA set out above.
DECISION
The decision is set aside and remitted for reconsideration by the CEO on the terms above outlined.
.......................[SGD].......................
Senior Member P J Clauson AM

[2023] AATA 794

12 April 2023

Key Legal Topics

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Administrative Law

Statutory Interpretation

Legal Concepts

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Procedural Fairness

Statutory Construction

Standing

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ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2021/2127
National Disability Insurance Scheme Division	)