Rain and National Disability Insurance Agency

Rain and National Disability Insurance Agency [2018] AATA 2597 (2 August 2018)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2016/4793
Re:Kerrie Rain
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Member K Parker
Date:2 August 2018
Date of written reasons: 2 August 2018
Place:Melbourne

The Tribunal affirms the decision under review.
................................[sgd]........................................
Member K Parker
National Disability Insurance Scheme – application for review of statement of supports in NDIS plan – participant requested funding for a wheelchair and a support carer to propel the wheelchair – whether reasonable and necessary supports – whether support warranted on account of the participant’s physical condition – participant suffers from borderline personality disorder – whether requested support may present a risk of dependence if provided – whether support required to allow the participant to having greater involvement in community activities that require travelling long distances – consideration of alternative supports
Legislation
National Disability Insurance Scheme Act2013 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013
REASONS FOR DECISION
Member K Parker
2 August 2018
INTRODUCTION

Ms Kerrie Rain has been diagnosed with borderline personality disorder, severe social and generalised anxiety disorder, and recurrent depression (possibly as part of bipolar affective disorder).[1] Ms Rain also complains of ongoing symptoms arising from a back injury sustained by her in 2013 for which she has received treatment.
[1] As diagnosed by Ms Rain’s treating psychiatrist, Dr Louisa Du Toit – see medical report dated 19 August 2017 (Exhibit “A3”).
Ms Rain commenced as a participant under the National Disability Insurance Scheme Act2013 (Cth) (Act) in January 2014. Since that time, Ms Rain has been provided with a range of supports for her medical conditions under the National Disability Insurance Scheme (NDIS).
On 16 June 2016, the NDIA approved a statement of supports that formed part of one of Ms Rain’s previous NDIS plans that commenced operation on 16 June 2016. That plan has now been replaced by subsequent plans.
In Ms Rain’s Statement of Position dated 1 September 2017, the supports in dispute were listed as a wheelchair; showering-related supports (which included bathroom modifications); psychological sessions; community support hours; weekend away/respite; and support coordination hours. In Ms Rain’s Closing Submissions lodged with the Tribunal on 19 December 2017 (Ms Rain’s Closing Submissions), the supports “in issue” were narrowed to “bathroom modifications and a portable folding wheelchair”. It was stated that there was “common ground” between the parties in relation to other supports for Ms Rain and proposals were made to the Tribunal as to how they should be dealt with.
On 26 April 2018, Ms Rain’s legal representatives informed the Tribunal that Ms Rain had recently sold her home and no longer seeks a decision from the Tribunal about the requested bathroom modifications. Ms Rain confirmed that she seeks a decision about the wheelchair.
On this basis, the Tribunal will consider whether the portable folding manual wheelchair and the provision of a support carer to propel the wheelchair (Wheelchair Supports) are supports that meet the requirements of the Act to be funded as supports under the NDIS.
Ms Rain contended that the provision of the Wheelchair Supports are reasonable and necessary by virtue of her disabling back injury, in that it would ameliorate the disabling effects of the back injury by:
(a)supporting her to access the community and undertake activities to facilitate community participation; and
(b)enhancing her psychosocial supports by providing greater opportunity to practice her skills in a social settings.[2]
[2] Refer paragraph [15] of Ms Rain’s Closing Submissions.
If the Wheelchair Supports were approved, it was clarified at paragraph [40] of Ms Rain’s Closing Submissions that the cost of a support carer to propel the manual wheelchair would need to be factored into the budgeted amount for community access.
Based on the medical evidence referred to below, the NDIA is concerned that the provision of funding to Ms Rain for the Wheelchair Supports are not required and likely to cause her harm. The NDIA contended that there is insufficient evidence that the wheelchair is required to overcome the functional consequences of Ms Rain’s physical injury and that providing that support would:[3]
(a)not be current good practice;
(b)would create a risk of dependence which is contrary to the therapeutic goal of greater self-reliance; and
(c)physical supports are not likely to be effective to enable Ms Rain to overcome the psychological hurdles of independent functioning.
[3] Refer paragraph [2] of the NDIA’s Closing Submissions dated 18 January 2018 (NDIA’s Closing Submissions).
Following a detailed consideration of Ms Rain’s evidence at the hearing, the medical evidence and the evidence from her treating therapists, I do not consider that the Wheelchair Supports are reasonable and necessary supports for Ms Rain at the present time and I affirm the part of the decision under review that relates to those particular supports. I have outlined my reasons for reaching this conclusion below.
ISSUES
The primary issue for determination in this application is whether the Wheelchair Supports should be included in Ms Rain’s approved statement of supports following a consideration of the factors set out in s 33(5) of the Act. This will require a consideration of whether the Wheelchair Supports are reasonable and necessary supports under s 34 of the Act applying the rules set out in the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Rules) including whether they will:
(a)assist Ms Rain to achieve her goals;
(b)facilitate her social participation;
(c)will be or are likely to be effective or beneficial having regard to current good practice;
(d)are likely to cause harm to Ms Rain.
LEGISLATIVE FRAMEWORK
Section 31 of the Act establishes a set of principles relating to the preparation, review and replacement of an NDIS participant’s plans and the management of funding of their supports. The Tribunal has taken in account those principles in making this decision.
Section 33(5) of the Act provides:
In deciding whether or not to approve a statement of participant supports under subsection (2), the CEO must;
(a) have regard to the participant’s statement of goals and aspirations; and
(b) have regard to relevant assessments conducted in relation to the participant; and
(c) be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and
(d) apply to 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.
Section 34 of the Act provides 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 that all of the following in relation to the funding or the provision of each support:
a.    The support will assist the participant to pursue the goals, objections 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 supports;
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.
(2) The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, in matters to which the CEO is to have regard, in deciding whether or not her or she is satisfied as mentioned by any of paragraphs (1)(a) to (f).
BACKGROUND AND EVIDENCE
Ms Rain’s family circumstances
Ms Rain is 43 years old and employed as an integration aide at a school on a part-time basis (three hours per day; four days per week). She is a single parent of two teenage sons. One of her sons has been diagnosed with autism spectrum disorder and is also a participant under the NDIS. Ms Rain is the primary carer for her sons. Ms Rain shares the care of her sons with their father.
The intended use for the requested Wheelchair Supports
Ms Rain gave evidence at the hearing that she did not require a wheelchair for activities that involved walking short distances, nor did she need it to use at home or at work. Ms Rain’s evidence was that she required a wheelchair in order to be able to participate in whole-day activities that would involve a lot of walking. An example provided was Ms Rain’s inability to keep up with her photography group when significant walking was required to locate objects to photograph. At the hearing, Ms Rain said she liked the outdoors. She said she would only use a wheelchair, “purely to help me get out into the community and be a member of a community and have some input so then you can enjoy your day out”.
MRI results of Ms Rain’s lumbar spine
The Tribunal was provided with a report of an MRI of Ms Rain’s lumbar spine performed on 29 April 2013.[4] The report concluded that there was a 3mm right foraminal and extra foraminal disc protrusion at L3/4 which abutted and slightly displaced and potentially impinged upon Ms Rain’s right L3 nerve root. The report also concluded that there was mild disc degeneration with a small central annulus fissure and minor central disc bulge at Ms Rain’s L4/5 but no associated neural compromise. The report concluded that there was no evidence of significant canal stenosis, cord compression or cauda equine compression, and no other significant findings in relation to Ms Rain’s lumbar spine.
[4] The NDIA lodged a set of documents with the Tribunal pursuant to its obligations under s 37 of the Act on 11 October 2016 and a supplementary set of documents on 22 September 2017 (referred to collectively as the T-Documents). Refer T-Documents T19/100.
A second MRI was performed in November 2013 and it concluded as follows:[5]
Compared with the previous MRI, the right L3/4 foraminal disc protrusion seen previously had reduced in size and is no longer abutting the right L3 nerve root.
Apart from minor disc degeneration at L3/4 and L4/5 there is no other substantial disc degeneration, large disc herniation or evidence of neural compromise.
No appreciable abnormality in relation to the lumbosacral plexus.
[5] Refer T-Documents ST6/22.
Despite those radiological findings, the NDIA does not dispute the observations of Ms Horman, Ms Pattison and Mr Dent with respect to Ms Rain’s difficulties with walking. The Tribunal finds that Ms Rain’s current capability to walk long distances is restricted. The Tribunal is satisfied that after Ms Rain walks 20 metres she is required to stop and rest before she is able to commence walking again. There was uncertainty as to what was causing those limitations.
The NDIA contended that in the absence of any specialist opinion about Ms Rain’s physical condition at the time the occupational therapists referred to in the above paragraph assessed Ms Rain, they were not in a position to know if Ms Rain’s limitations were physical or psychological in origin, or both.[6]
[6] Refer paragraph [7] of the NDIA’s Closing Submissions.
Ms Lauren Pattison – treating occupational therapist
In November 2015, Ms Lauren Pattison, occupational therapist, undertook an assessment of Ms Rain at the request of the NDIA. The Tribunal notes that Ms Pattison’s qualifications include a Bachelor of Occupational Therapy and also a Bachelor of Psychological Science.
In Ms Pattison’s report dated 10 December 2015, she notes that Ms Rain sustained her back injury at work while she was opening a gate and sneezed and that it had affected her considerably since that time. Ms Pattison recorded that Ms Rain has reduced mobility and that she ambulated with a single-point stick or at times with a wheeled trolley.[7] Ms Rain had reported to Ms Pattison:[8]
...difficulties in mobilising and walks with the single point stick, suprapubic catheter, fatigue, chronic pain and decreased sensation predominately in right foot and leg.
[7] The Tribunal notes that the wheeled trolley referred to above was recommended to Ms Rain by Ms Natalie Horman, an occupational therapist, who described it in her report dated 10 December 2014 as a “heavy duty kitchen trolley” to assist Ms Rain to “transport items around the house while maintaining stability”- refer T-Documents T17/90.
[8] Refer T-Documents T15/77-80.
Ms Pattison issued a further report dated 22 May 2016 stating that community access, which was desired by Ms Rain, was difficult for her due to fatigue and pain. Ms Rain had reported ongoing difficulty with chronic pain.[9]
[9] Refer T-Dcouments T12/63-65.
Ms Pattison issued a further report regarding Ms Rain on 22 August 2017.[10] In relation to “community mobility”, Ms Pattison observed that Ms Rain was able to complete community activities independently, if they were within close driving distance to her home and did not require lengthy walking. Ms Pattison stated that Ms Rain was unable to complete community activities that required walking due to pain and fatigue and history of falls and had to cease participation. Ms Pattison stated in her report that she supported Mr Dent’s recommendation for a wheelchair (see paragraph [30] below) and that it would support Ms Rain “to access a range of needed and wanted community occupations, thus increasing life choices and wellbeing”.[11]
[10] Refer Exhibit “R2”.
[11] Refer page 5 of Exhibit “R2”.
Dr Bettine Wrobel – treating general practitioner
In May 2016, Ms Rain requested that her general practitioner, Dr Bettine Wrobel, write to the NDIA about the deterioration in her physical condition. In this letter, Dr Wrobel stated that Ms Rain had not been able to access group activities or to manage community access for long periods of time.[12] Dr Wrobel’s report stated that Ms Rain had sustained her original back injury in April 2013 and over time she had shown significant deterioration of function and mobility. The report stated that Ms Rain required a constant walking aid, was not able to manage steps by herself and had a maximum walking distance of 100 metres with rest breaks. The report stated that Ms Rain was in constant pain and that walking was “never pain free”. It stated that Ms Rain required a bed stick to get up out of bed.
[12] Refer T-Documents T14/71&72.
In terms of past treatment received by Ms Rain, Dr Wrobel states in her report as follows:
Since her injury Kerrie has had physical therapies by physiotherapist Eliza Barry. She was also seen at the Geelong pain clinic for epidural steroid injection and for radiofrequency treatment to her lumbar spine both March 2014.
It has been felt by the pain clinic team as well as the urology team looking after Kerrie that medically there is not much else that can be offered. Therefore treatment in conservative at the present.
Dr Louisa Du Toit – treating psychiatrist
Ms Rain’s treating psychiatrist, Dr Louisa Du Toit, issued a report dated 19 August 2017 and gave evidence at the hearing.[13] In the report, Dr Du Toit stated that she had treated Ms Rain since June 2017 and she opined as follows:
Ms Rain’s ability to socialise outside her home environment is significantly impacted by difficulties mobilising, which cause significant fatigue, as well as an increase in her social anxiety due to the fear that she may fall. I am not qualified to give an opinion of what other measures need to be taken to improve Ms Rain’s mobility, however, I do agree that a manual wheelchair may assist her with difficulties.
[13] Refer Exhibit “A3” or ST3/160-167.
Dr Du Toit gave evidence that the risk of regression in response to physical supports was certainly a possibility with any person who would fall under personality disorder. She said that Ms Rain was on the higher end of borderline personality disorder and that it was quite severe so there was always that risk. However, the doctor said that Ms Rain is more regressive when she feels that she is overwhelmed by the demands on her and that she does not get support. Dr Du Toit said to support Ms Rain is often more helpful to build up her level of self-sufficiency.
The doctor also acknowledged at the hearing that was a risk that applied in Ms Rain’s case although she did not consider it to be a “major risk” with respect to the provision of a wheelchair. Dr Du Toit considered there to be a “small possibility” of dependence. The doctor considered that the provision of the wheelchair was likely to make Ms Rain feel more supported, improve her self-esteem and give her freedom to enjoy group activities. Dr Du Toit gave evidence that, “Unfortunately, I cannot say categorically that there was ever any risk of her becoming more dependant, I don’t think the risk – I’m not that worried, because the benefits might still outweigh first”. Dr Du Toit said that this support could be reduced as Ms Rain made gains in her mental health over the long term.
Mr Brad Dent – occupational therapist
Mr Rain’s legal representatives arranged for Mr Brad Dent, occupational therapist, to assess Ms Rain on 21 December 2016 and to give evidence in this application. Mr Dent issued a report dated 29 March 2017.[14] Mr Dent said that Ms Rain was affected by fatigue when mobilising beyond a relatively short distance using her single-point walking stick. He recommended that Ms Rain be provided with a foldable entry-level manual wheelchair for use in the community. He said that if Ms Rain used a four-wheeled walker, she would need to take a break at the same rate as she would if she was using a single-point walking stick (i.e. every 20 metres).
[14] Refer Exhibit “A1”.
In his report, Mr Dent stated that:
(a)Ms Rain reported a history of spinal cord compression/back injury causing paralysis below the waist and following a period of rehabilitation, continued lower limb paraesthesia with residual spontaneous “giving way” and reduced lower limb strength on the right side;
(b)Ms Rain was fully dependent on a single-point walking stick for all walking and most transfers;
(c)Ms Rain was observed to reach her walking endurance threshold after walking approximately 20 metres outside with her single-point walking stick;
(d)it was likely that Ms Rain was able to mobilise over distances beyond 20 metres using her single-point walking stick, however, on days when pain and fatigue levels were high, the impact of Ms Rain’s “fatigue associated with L3-L5 bulging discs with associated spinal cord compression” and “extreme fatigue (severe anxiety disorder)” could be reduced by the provision of a manual wheelchair;
(e)the wheelchair was not intended or required for constant use or internal house use. It was intended to assist Ms Rain with participating or re-engaging with her local community. Mr Rain had previously felt that she had negatively impacted on the group by requesting that they regularly stop or take repeated breaks to enable her to rest before being able to continue to participate; and
(f)Ms Rain would require the assistance of others (informal or formal supports) to ensure that she could use the wheelchair in the community.

At the hearing, Mr Dent said he was aware of the condition of borderline personality disorder but conceded he did not have an extensive knowledge of this condition. He gave evidence that he did not specifically consider whether there was potential for Ms Rain to regress if provided with the supports.
Dr Doron Samuell – clinical and forensic psychiatrist
Dr Samuell was engaged by the NDIA to provide an expert medical opinion after conducting a file review and having spoken to Dr Du Toit. In his report dated 18 September 2017, Dr Samuell noted that from a mental health perspective, Ms Rain’s difficulties were complex and that it appeared that she had periods of satisfactory functioning, together with episodes of acute deterioration.[15]
[15] Refer Exhibit “R3”.
Dr Samuell was asked by the NDIA to indicate whether there were any (or any other) clinical treatments and/or non-clinical approaches that he would recommend for Ms Rain; to which he answered (emphasis added):
Having not directly assessed Ms Rain, it would not be appropriate for me to recommend treatments or non-clinical approaches. Having discussed Ms Rain’s condition with her treating psychiatrist, we agreed that it was important for both her physical and mental health treatments be optimised. A component of her mental health treatment was to optimise her independence. We agreed that interventions that were likely to inadvertently encourage illness behaviour, such as well-meaning, but potentially misguided attempts to assist Ms Rain’s mental state through a vehicle of physical assistance may inadvertently undermine her psychological therapy.
Dr Samuell also opined as follows (emphasis added):
One should employ considerable caution in any therapeutic strategy that detours from the general principle of directly improving Ms Rain’s level of functioning. To argue that measures such as the provision of a wheelchair and major bathroom modifications would be necessary to improve her level of functioning discounts the very real prospect that they may further exacerbate her regressed behaviour, leading to counter-therapeutic outcomes. Dr Du Toit and I agreed that Ms Rain’s physical and psychological needs should be considered separately. As such, appropriately qualified experts in Ms Rain’s physical state should guide the requirements for the provision of physical services. If recommendations for physical services are based on psychological, rather than physical requirements, this should be avoided and considered to be counter-therapeutic.
Dr Samuell suggested that rather than accommodating Ms Rain’s fears by extensive physical interventions, it would be appropriate to have reasonable expectations made of Ms Rain in accordance with community standards. The doctor stated that there was considerable psychological evidence that increasing expectations improved outcomes and no evidence to his knowledge that would support physical modifications to address internal psychological needs that were not based on physical impairment. Dr Samuell said that given the nature of borderline personality disorders, dependency needs are likely to be insatiable and shift from one issue to another.
Dr Samuell opined that if a wheelchair was not required for physical reasons, given Ms Rain’s personality structure, it would be inappropriate to provide her with such a service. He stated that it had the “strong potential to exacerbate Ms Rain’s psychological well-being”.
At the hearing, Dr Samuell further elaborated on his opinion stating there was that there was a lack of correlation between the medical imaging of Ms Rain’s back condition and the reported symptoms. He said that Ms Rain’s request for a wheelchair should be assessed through the prism of a condition (borderline personality disorder) whose cohort have insatiable dependency needs and a vulnerability to engaging in sick role behaviour. For this reason, Dr Samuel considered that the proposed use by Ms Rain of a wheelchair was likely to elicit caring behaviours and be “ultimately quite harmful” to her.
Ms Andrea Douglas – occupational therapist
Ms Douglas was engaged by the NDIS to give evidence as an expert witness in this application. Ms Douglas gave evidence that she had worked in occupational therapy for 24 years. She said she had worked primarily with persons diagnosed with physical conditions but had worked extensively in the area of acquired brain injury. Ms Douglas said she had worked with two persons previously who had borderline personality disorder and many others with psychosocial disabilities such as anxiety and depression.
Ms Douglas prepared two reports, both dated 15 September 2017.[16] Ms Douglas indicated that Ms Rain had reported anxiety and frustration that her current community participation capacity was limited by her chronic back pain and endurance. Ms Rain had reported that she was able to walk approximately 50 metres prior to needing to rest due to pain and fatigue. Ms Douglas considered that the supply of wheelchair to Ms Rain would enable increased community participation by her. However, it would not increase independence due to the support Ms Rain would require in using the item. Instead, Ms Douglas recommended the use of a four-wheeled walking frame in the community as it was anticipated that this would enable Ms Rain to mobilise a further distance before fatiguing; she would have ready access to a seat to rest on; and she would not require additional support to use the item.
[16] Refer T-Documents ST7/225-229 and ST8/230&231.
At the hearing, Ms Douglas gave evidence that she observed Ms Rain mobilising quite well inside her home using the wheeled trolley which Ms Douglas said was much like a four-wheeled walker.
Ms Douglas was asked at the hearing whether she had considered as a solution for Ms Rain the hiring of a wheelchair on an ad hoc basis, to which she responded:
I did consider that as an option because, I guess, as I said my concerns were that perhaps potentially, if there is a wheelchair that’s readily accessible, that perhaps it becomes their “go to” rather than maintaining the capacity to continue to mobilise, and that perhaps then as a result (indistinct) then gets further reduced endurance and then potentially increased pain also long term with Ms Rain, which is certainly what I would really dislike to see. So I did query in my own mind whether perhaps acquiring a wheelchair for those sort of one-off events, where a wheelchair might be preferable, would be the ideal option, yes, I’ll agree there.
CONSIDERATION
Subsection 34(1)(a) – Whether the provision of the Wheelchair Supports will assist Ms Rain to pursue the her goals, objectives and aspirations
Ms Rain’s goals and aspirations have been set out in her previous NDIS plans. Of relevance, they have included the following:
I want to make more friends and join in on group activities; and
I want to continue to be a good mother and look after myself and my children as independently as possible.
In the current NDIS plan for Ms Rain created after the hearing in this application (provided to the Tribunal on 31 July 2018), Ms Rain’s goals were recorded, as relevant to the requested support, as follows:
My First Goal is: During this plan: To be able to participate and be supported in activities and explore more activities that may interest me in a supported environment. To develop and establish new friendships, through day programs and camps. To participate in activities in the community like markets, flower show, festivals, movies, photograph both locally and in other towns. To have the use of a wheelchair for activities longer than 2 hours so I’m able to spend and enjoy whole days in group or single activities.
The provision of a wheelchair to Ms Rain will reduce her independence. Ms Rain has clarified that she will require the assistance of another person when using the wheelchair. The concerns raised about the risk of Ms Rain becoming increasingly dependent on the wheelchair may also negatively impact on her previously stated goal of maintaining independence. However, it will assist Ms Rain to pursue her goal of joining in on group activities if those activities involve a whole day outing and require mobilising long distances at a fast pace. There are many group activities that Ms Rain would be able join in on absent being provided with the wheelchair under the NDIS, including those that take place over a shorter period of time; do not require walking long distances; or where mobility assistance is provided by the facility or service hosting the activity.
In conclusion, the Tribunal is not satisfied that this support would assist Ms Rain to pursue her goals as mentioned in paragraph [43]. Ms Rain is able to pursue such group activities that fall into the latter category referred to in the above paragraph without the provision of the requested support under the NDIS. The requested support may work against Ms Rain achieving her previously stated goal of looking after herself and her children independently if she became increasingly dependent on the use of wheelchair and a carer to propel the wheelchair as a consequence of it being provided to her under the NDIS.
The Tribunal is satisfied the support would assist Ms Rain to pursue her goal as referred to in paragraph [44].
The Tribunal is satisfied that this support would assist Ms Rain to pursue some but not all of her goals. On this basis, I conclude that the requirement under s 34(1)(a) is met.
Subsection 34(1)(b) – Whether the support will assist Ms Rain to undertake activities, so as to facilitate her social and economic participation
The Tribunal concludes that this requirement is not met because Ms Rain is able to, without the provision of the Wheelchair Supports, participate socially in a range of group activities where they take place over a shorter period of time, do not require walking long distances at a fast pace or where mobility assistance is provided by the facility or service hosting the activity. Ms Rain gave evidence that she did not intend to use a wheelchair at her place of work so the provision or not of a wheelchair will have no impact on her economic participation. The Tribunal is not satisfied that the requirement under s 34(1)(b) of the Act is met.
Subsection 34(1)(c) – Whether the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative supports
Rule 3.1 of the Rules provides as follows, as relevant:
Value for money
3.1      In deciding whether the support represents value of money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of the alternative support, the CEO is to consider the following matters:
(a)       whether there are comparable supports which would achieve the same outcome at a substantially lower cost;
(b)       whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long-term benefit to, the participant;
(c)       whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);
…
Given the risk that Ms Rain may develop an increasing dependence on using a wheelchair if it is provided to her under the NDIS, which is likely to increase (not reduce) the cost of funding supports for Ms Rain in the long term (particular if it includes the cost of providing a support carer to propel the wheelchair which has been requested); and also in light of the recommendation of Ms Douglas that an alternative support being a four-wheeled walker should be made available to Ms Rain to trial, I am not satisfied that the wheelchair represents value for money under s 34(1)(c) of the Act.
Section 34(1)(d) - Whether the support will be, or is likely to be, effective and beneficial for Ms Rain, having regard to current good practice.
In relation to this requirement, r 3.2 of the Rules provide as follows:
3.2      In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include:
(a)       published and refereed literature or any consensus of expert opinion;
(b)       the lived experience of the participant or their carers; or
(c)       anything the Agency has learnt through delivery of the NDIS.
3.3      In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary seek, expert opinion.
Of particular relevance to this application, rule 5.1 of the Rules establish as a general criteria for supports as follows:
5.1 A support will not be provided or funded under the NDIA is:
(a) it is likely to cause harm to the participant or pose a risk to others; or…
I have closely considered the evidence given by a number of medical experts and occupational therapists in this application. I accept the evidence given by Dr Samuell, as supported by Ms Douglas, that it would be potentially harmful to provide Ms Rain with the use of the wheelchair on a permanent basis in light of her borderline personality disorder and the risk that it may result in increasing dependence by her on that physical support, to her detriment. The available radiological evidence was inconclusive that there continued to be cord compression or nerve impingement at the site of Ms Rain’s lumbar spine. I accept that Ms Rain has the day-to-day experience of feeling pain arising from her pervious back injury; however, I consider that this arises as a manifestation of her psychological conditions.
I do not accept Ms Du Toit’s evidence that the risk of dependence was minor. Ms Rain has demonstrated in the past the continued use of other physical supports once provided to her, such as the wheeled trolley in the home and the single-point walking stick for walking activities. I do not accept Mr Dent’s recommendation that the provision of a wheelchair to Ms Rain is appropriate as I consider that he was not sufficiently qualified to make the assessment he did, in the absence of having sufficient knowledge about the effects of providing a physical support to an individual contending with physical challenges in conjunction with the condition of borderline personality disorder. At the hearing, Mr Dent preferred to defer to the opinion of a psychiatrist and understandably so.
The Tribunal is satisfied that the requirement under s 34(1)(d) of the Act is not met.
Section 34(1)(e) - Whether the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and community to provide
At some venues, mobility assistance may be provided (for instances, at certain shopping centres wheelchairs are made available for public use). However, this is not the case for all group activities (for example, a walk in a park to take photographs). I am satisfied that the requirement under s 34(1)(e) is met.
Section 34(1)(f) - Whether the support is most appropriately funded or provided through the NDIS, and is not more appropriately funded or provided through other service systems
The Tribunal does not consider that this support 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 or in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability. I am satisfied that the requirement under s 34(1)(f) of the Act is met.
CONCLUSION
I am not satisfied that the requirements under s 34(1) of the Act are met with respect to the provision of the Wheelchair Supports for Ms Rain. For this reason and in consideration of Ms Rain’s circumstances, and her current physical and psychological medical conditions, I conclude that those supports are reasonable and necessary supports. In consideration of this and the other matters referred to in s 33(2) of the Act, as relevant to this application, I consider that the decision to approve a statement of participant supports for Ms Rain that omitted the Wheelchair Supports for Ms Rain was the preferable decision. On this basis, I affirm the decision under review.
I make a further observation based the Tribunal’s detailed consideration of the evidence before it in this application. This observation is non-binding as alternative supports (to the Wheelchair Supports) were not requested by Ms Rain or her representatives. I consider as imminently sensible the recommendation that was made by Ms Douglas for Ms Rain to trial the use of a four-wheeled walker for use during community outings, to explore whether this alternative (and more independent) support would meet Ms Rain’s needs. I reach this view based on the reasons outlined by Ms Douglas for making this recommendation in her evidence at the hearing. I also consider that a good solution may be to provide Ms Rain with funding to hire, on an ad hoc basis, a wheelchair for her use when she plans to attend whole-day community outings that will require her to travel long distances at a fast pace on foot. I consider that such supports would meet the requirements of being necessary and reasonable supports under s 34(1) of the Act. Should Ms Rain desire it, the NDIA may wish to consider whether to include such supports in Ms Rain’s next NDIS plan to allow for a trial of one or other of those supports to take place.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for decision of Member K Parker
……………[sgd]…………………………
Associate
Dated: 2 August 2018
Counsel for the Applicant:  Ms Diana Price
Solicitors for the Applicant:  Victoria Legal Aid
Other representatives for the Applicant:         Rights, Information and Advocacy Centre
Counsel for the Respondent:  Ms Sarah Varney
Solicitors for the Respondent:  In-house counsel, NDIA
Date of the hearing:  25 & 26 September 2017, 26 October 2017
Date of final closing submissions:                 16 January 2018

[2018] AATA 2597

2 August 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Remedies