Ransom and National Disability Insurance Agency

[2021] AATA 4812

Ransom and National Disability Insurance Agency [2021] AATA 4812 (23 December 2021)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):2021/0227      

Re:Rosemary Ransom  

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal: Member I Thompson

Date:23 December 2021

Place:Adelaide

The Tribunal affirms the decision under review.

....................[sgnd]....................................................

Member I Thompson

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – review of statement of participant supports – reasonable and necessary supports – applicant sought review of statement of participant supports for four fixed ceiling hoist tracks with lateral motor and the Sure Hands System – decision affirmed

Legislation

National Disability Insurance Scheme Act 2013 (Cth)

National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)

Cases

McGarrigle v National Disability Insurance Agency [2017] FCA 309.

REASONS FOR DECISION

Member I Thompson

23 December 2021

INTRODUCTION

1. The Applicant, Rosemary Ransom, has been a participant in the National Disability Insurance Scheme (NDIS) since 17 May 2019. She is 68 and she has multiple sclerosis. Her application to the Tribunal concerns a request for funding fixed ceiling hoists at home.

2. The Respondent, the National Disability Insurance Agency (the Agency) approved funding for a fixed ceiling hoist in the bedroom but not others. The issue is whether the Agency should fund ceiling hoist tracks in the ensuite bathroom and lounge room. It is not in dispute that Ms Ransom requires full support for all transfers.

3. In her application to the Tribunal, Ms Ransom wrote that the Agency’s decision is wrong with sufficient evidence to the contrary, namely that the requested supports represent value for money^. 

4. The hearing took place on 25 and 26 October 2021. Ms Ransom attended the hearing by video. She was represented by her husband and plan nominee Mr Ransom who attended the hearing in person, with support from an advocate, Ms Coates. Ms Davey represented the Agency. Ms Ransom and Mr Ransom gave evidence. The Agency called one witness, an occupational therapist, Ms Deborah Hammond.

LEGISLATION AND GUIDELINES

1. The NDIS is established by the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act), and the Agency administers the NDIS Act.

2. The objects of the NDIS Act are set out in section 3 and make particular reference to the purpose of providing reasonable and necessary supports for participants in the Scheme.

   Subsection (3)(1) provides in part that the objects of the Act are to:

   ...
   (c) support the independence and social and economic participation of people with disability; 
   ...
   (e) enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports;

   …

   (f) facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability …

3. Section 4 of the NDIS Act sets out general principles to guide decisions and actions taken under the Act. Relevantly, those principles include:

   …
   (4) People with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports.
   
   (5) People with disability should be supported to receive reasonable and necessary supports, including early intervention supports
   …
   (11) Reasonable and necessary supports for people with disability should:

   (a)   support people with disability to pursue their goals and maximise their independence; and

   (b)   support people with disability to live independently and to be included in the community as fully participating citizens; and

   (c)   develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment

   …

   (15) Innovation, quality, continuous improvement, contemporary best practice and effectiveness in the provision of supports to people with disability are to be promoted.

4. In giving effect to the objects, regard must be given to, amongst other things, ‘the need to ensure the financial sustainability’ of the Scheme and ‘the provision of services by other agencies, Departments or organisations and the need for interaction between the provision of mainstream services and the provision of supports under the National Disability Insurance Scheme.’

1. Section 34(1) of the NDIS Act provides that, for the purposes of specifying in the statement of participant supports the reasonable and necessary supports that will be funded under the scheme, the CEO must be satisfied that:

(a)the support will assist the participant to pursue the goals, objectives and aspirations in the participant’s statement of goals and aspirations;

(b)the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;

(c)the support represents value for money in that the costs of the support are reasonable relative to both the benefits achieved and the cost of alternative support;

(d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;

(e)the funding or provision of the support takes account of what is reasonable to expect families, carers, informal networks and the community to provide;

(f)the support is most appropriately funded or provided through the NDIS and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:

(i)as part of a universal service obligation; or

(ii)in accordance with the reasonable adjustments required under a law dealing with discrimination on the basis of disability.

10. If one of the above requirements in s 34(1) (a) – (f) is not satisfied, then the particular item is not a reasonable and necessary support.

11.  The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (the Support Rules) deal with the assessment and determination of ‘reasonable and necessary supports’ that will be funded under the Scheme. The Support Rules form part of the legislation.

BACKGROUND

12.  Ms Ransom resides in the family home with her husband. He supports her with her daily care needs. Ms Ransom’s NDIS plan of 15 October 2020 – 15 October 2021 did not provide funding for 4 ceiling hoists.[1] Provisions existed within the plan for capacity building supports and capital supports which included funding for assessment and training with adaptive equipment, assistive technology and advice regarding home modifications. Two short term goals in the plan concerned remaining safe at home with supports to address the needs for assistance with daily living tasks, and secondly the enhancement of health outcomes by having access to appointments and therapeutics supports. Ms Ransom’s medium or long-term goals included the following:

·to continue to improve my overall physical strength, balance, core strength and stability with the aim of being able to access all areas within my home; and

·I would like to have support to identify what assistive technology and home modifications can be provided to support my needs. 

[1] T13, p 91.

13.  In requesting an internal review of the decision to approve the statement of supports in the NDIS Plan, Ms Ransom sought funding for four ceiling hoists, one each in the master bedroom, in the ensuite bathroom, in the lounge room and in the second bathroom.[2]  Mr Ransom wrote a detailed and constructive analysis of the options in an email to assist in the internal review process.[3] The analysis included commentary about testing and suitability of mobile lifters with particular reference to Ms Ransom’s personal circumstances, her daily activities, the layout of the family home, the objects, principles and requirements of the NDIS statutory criteria, the question of cost and availability of the supports, the involvement of carers and the overriding need to show respect for the dignity of the individual. Concept plans for the rooms and location ceiling lifts were included in the correspondence. Their research and deliberations have been extensive

[2] T9, p 47.

[3] T11, p 49.

14.  Ms Ransom’s internal review request was not successful. By letter dated 22 December 2020,[4] an internal review delegate confirmed the Agency’s original decision and declined the requests for funding which were summarised as:

[4] T2, p 12.

-Funding for 4 fixed ceiling hoist track with lateral motor and Sure Hands Body Support totaling $99,298.40

-Bedroom $30,776.90

-Lounge $17,598.50

-Bathroom 1 $25,385.50

-Bathroom 2 $25,385.50

-Cushions for cups $152

15.  In explanation of the internal review decision, the Agency’s letter pointed out that Ms Ransom was reliant at that time on carers for pivot transfers. Among the comments and explanations, it was suggested that further assessments from an occupational therapist would be necessary together with a floor plan and engineers’ certification regarding proposed modifications. It was acknowledged that lifting equipment is required. In the event of a ceiling hoist being the most appropriate solution, it was noted conceptually that one ceiling hoist, typically in a bedroom, would be appropriate for transfers together with the use of mobile assistive technology in other rooms, adding that the “primary purpose of all hoists, mobile and ceiling – is for transfers and not for mobility.”[5]

[5] T2, p 16.

16. The Agency agreed subsequently that one fixed ceiling in the main bedroom was reasonable and necessary in accordance with the criteria under section 34(1) of the NDIS act. The Agency agreed to fund one fixed ceiling hoist in the bedroom. The partial agreement was reflected in Ms Ransom’s new and current NDIS plan which commenced on 13 August 2021 with a review due date of 30 August 2022. Total funded supports amount to $179,294.83. The funding for capital supports includes provision for a fixed ceiling tracking system in the bedroom at a cost of $30,884.98. Subsequently, and prior to the hearing Ms Ransom indicated that she would not proceed with the request for a ceiling hoist in the second bathroom. Apparently the access to the second bathroom is problematic because of a step down.[6]

[6] T3, p 35.

17.  Accordingly, the current situation is that funding is in place for the hoist in the bedroom, the request for a ceiling hoist in the second bathroom is not pursued and the outstanding question – the requested supports - are the supply of fixed ceiling hoist tracks  in the lounge and ensuite bathroom. The Agency contends that the requested supports do not represent value for money as the costs are not reasonable relative to both the benefits to be achieved and the costs of alternative support. The Agency submits that there is no benefit from multiple ceiling hoists home notes that they will not reduce the need for support.

18.  The Agency’s costing of options which it contends best meet Ms Ransom’s circumstances is a total of $9,510.51 for items which include a portable hoist and sling for transfers, an attendant propelled wheelchair with seating support, attendant propelled commode with swing away arms, a recliner lift chair, a portable urination device and funding for occupational therapy support for training in use of the portable hoist.[7]

[7] Exhibit 6.

19.   In support of Ms Ransom’s proposal for two ceiling hoists, one in the ensuite bathroom and the other one in the lounge room, it is suggested that they would enable her to transfer as independently as possible when she is able and needs to do so. She contends that resort to a manual lifting device in the lounge room reduces her independence

20.  The cost currently quoted for fixed track ceiling hoist in the lounge on 21 September 2021 was $18,600.84. The cost quoted for the fixed track ceiling hoist in the bathroom on 14 September 2021 was $26,931.64.[8]

[8] Exhibit 6.

21.  In her statement of issues facts and contentions, Ms Ransom submitted that the Agency had not addressed her requested supports in a holistic way which therefore did not take account of both her requirements and the requirements for carer safety. Emphasis was given to the need to understand how Ms Ransom spends her day. It was contended that there are benefits with multiple ceiling hoists in the house with an assortment of slings. Ms Ransom would have greater independence and  safety in the manoeuvres would be enhanced for both her and the carer, hygiene tasks would be undertaken with greater control, the intrusion on the floor areas would be decreased and rearrangement of furniture would not be necessary. Costings of various options were addressed as part of the considerable amount of research and enquiries which Ms Ransom and her husband carried out in investigations into the most appropriate equipment, support and services.

EVIDENCE

22.  Ms Ransom told the Tribunal about her routine during the day with transfers.  In the morning she has assistance getting out of bed, onto a wheelchair and assistance in the ensuite bathroom with toileting, showering with the use of a shower chair and transfer back to the wheelchair. At home during the day, she uses a small indoor scooter which gives her a degree of independence though problems still occur with, for example, getting close enough to a kitchen bench to prepare a meal. Away from home she uses a wheelchair which she finds more practical particularly if she is sitting at a table having a meal.

23.  Ms Ransom said that she spends quite some time in the lounge room during the day and calls for assistance if she needs to go to the bathroom. After dinner she generally has assistance to go to the bathroom, back to the couch and further assistance with transfers to the bathroom and into bed. Her husband assists with a great deal of the care and she has a paid carer 5 days a week between 10 AM and 4 PM who assists with transfers. She told the Tribunal that she has not been to walk independently for the past 3 years. She was able to transfer until about 18 months or 2 years ago but the progression of the multiple sclerosis resulted in her inability to weight bear. Inside the house she cannot access the second bathroom is it is a step down 

24.   In his oral evidence at the hearing, Mr Ransom described investigations, enquiries assessments and analyses which he made with and on behalf of Ms Ransom in their search for the most appropriate lifting options. He described it as a journey which includes the input of occupational therapists, industry suppliers, and engineers. The layout of the house, the possibility of renovations, accessibility and independence for Ms Ransom, issues about her safety and carers capability in manual handling are some of the major questions which Mr Ransom addressed in the journey. It has been a complex process in which he has engaged in a considerable amount of research locally and in the assessment of developments overseas.

Allied health evidence

25.  A report by an occupational therapist, Ms Natalya Meiring dated 3 September 2020,[9] followed the NDIS complex home modification assessment template in relation to assessments which were conducted in July and September 2019 and July and August 2020. The report noted that Ms Ransom was diagnosed with progressive multiple sclerosis in 2008 and she is presently reliant on her husband to assist with transfers, showering, shopping, food preparation and gardening. She has access to support workers. Prior to the initiation of Ms Meiring’s assessment Ms Ransom did not have access to lifting equipment to assist with manual handling. She was using her scooter, an electric wheelchair, a shower commode and recliner couch. She attended physiotherapy sessions. The family home comprises 3 bedrooms and 2 bathrooms on split-level. Ms Meiring provided the following description of the property:

the home is a 3 bedroom, 2 bathroom, split-level home which has been partially modified (self-funded) to make it more accessible for Rose. Currently they have a lift from the garage to the outside patio in order for her to gain access to the home through the laundry room. Rose is able to access the rooms, dining rooms, lounge and one bathroom when using her scooter. Currently she is not able to access the other bathroom as there is a step down into the bathroom. Although she can access the kitchen when using her wheelchair or scooter, she is not able to reach cupboards, the taps and/or countertops. There is a ramp leading from the dining room to the entrance hall and from the entrance to the bedrooms.[10] 

[9] T3, p 17.

[10] T3, p 28.

26.  Ms Meiring’s findings on functional assessment recorded the significant impairments which Ms Ransom has with mobility, transfers (bed, chairs, toilet, car), upper limb function, and difficulties with lifting and carrying. The findings recorded significant level of assistance which she requires with activities of self-care and various tasks of domestic activities

27.  Ms Meiring conducted a stand lifter trial and subsequently a floor sling lifter trial   on two separate occasions in September 2019. She reported that the outcome of both trials was unsuccessful

28.  Ms Meiring’s report commented on the stand lifter trial with an Aspire A 200 S Standing Lifter on 3 September 2019 and noted that Ms Ransom attempted a transfer without completion, in part because of significant pain in her knees.[11] In evidence Ms Ransom confirmed that she felt uncomfortable unsafe and not steady with that lifter.

[11] T3, p 32.

29.   In her report Ms Meiring commented on a subsequent floor sling lifter trial with the Aspire A 205 lifter on 18 September 2019 and noted that Ms Ransom declined to try the lifter because of her concerns regarding safety, discomfort and pain. In evidence she described the prospect of using that lifter as daunting.

30.   As the outcome of the trials of the floor lifters was unsuccessful, the next step was consideration of ceiling hoist lifters. Trials were conducted in July and August 2020

31.  Ms Meiring commented on those trials which culminated in success in the completion of four transfers, two from plinth and two from wheelchair to plinth. This led to recommendations which Ms Meiring recorded in her report. The recommendation followed for the Sure Hands powered traverse system for the main bedroom. Factors in favour included the comfort which Ms Ransom had in using this system, feeling safe and secure, ability to use the controller independently, the reduction in manual handling requirements during transfers, additional padding from body cups with cushions, enhanced independence with transfers and manoeuverability less reliance on carers for transfers and a potential reduction in costs for carers.

32.  For the lounge room Ms Meiring recommended installation of a fixed ceiling hoist track with lateral motor and Sure Hands Body Support system. Thus far Ms Ransom has relied on others to transfer her from the lounge chair to the scooter or wheelchair. Without lifting equipment there is a concern about manual handling with strain on the carer.

33.  For the ensuite bathroom and the second bathroom Ms Meiring recommended similarly the installation of a fixed ceiling hoist track with powered traverse and Sure Hands Body Support system for each bathroom. She noted that Ms Ransom can access the ensuite bathroom on her scooter. She can access the shower by using  a shower commode which, in turn, increases the need for manual handling for the transfer into the shower. The second bathroom is not accessible because it has one step down into it and a modification would be required to enable Ms Ransom to access the shower and toilet, accordingly there was a suggestion that a modification proposal would be submitted. The required installations would be completed after and subject to engineering inspection and report.

34.  The Agency arranged for an assessment by an Occupational Therapist, Ms Deborah Hammond. She provided a report on 28 April 2021 and a supplementary report on 4 August 2021. She gave evidence by video at the hearing.

35.  Ms Hammond is an experienced practitioner. She noted in her first report that Ms Ransom requires assistance with all transfers as she is non-weight bearing, she requires a hoist transfer, in particular one ceiling hoist in the bedroom, a portable hoist and sling for transfers, attendant propelled wheelchair with seating support, attendant propelled commode with swing away arms, a recliner chair, a portable urination device, and accessible bathroom with level floor shower recess, vanity at accessible height and toilet suitable for a commode, together with  professional support from an occupational therapist in relation to  decision-making about equipment and training in its use. The transfers which involve another person lifting her under her arms and taking her full body are unsafe and Ms Hammond confirms that Ms Ransom requires a hoist transfer.[12]

[12] Exhibit 5.

36.  The Aspire A205 lifter is one of several models of suitable hoists which, according to Ms Hammond, would require a trial and training. Ms Ransom would require another person to position the sling, operate the hoist and complete the transfer. The caregiver would require training in the use of the equipment. Those lifters have casters which facilitate movement and Ms Ransom’s house has internal ramps which will assist the movement of the hoist inside and also to the garage to assist with transfers into the vehicle if she is not using a wheelchair.

37.  Ms Hammond commented on the ceiling hoist – body support system. In her supplementary report and in her evidence, she was clear and consistent that there are no benefits from multiple ceiling hoists inside the house and they would not reduce Ms Ransom’s requirement for assistance from another person with her transfers. She described the usual setup for a ceiling hoist as follows:

typically, a ceiling hoist is placed over the bed so the individual can be transferred from the bed onto an attendant propelled commode and then wheeled to the bathroom for their shower/toilet routine. They can then be wheeled back to the bedroom, transferred back onto the bed to get dressed and then transferred onto their mobility aid (power wheelchair/scooter).
The individual would usually remain in their wheelchair for the remainder of the day.… Ms Ransom has not had a suitable mobility aid prescribed for her needs. In my opinion, the scooter and her current power wheelchair do not provide the support and comfort she needs to allow her to sit for extended periods.
Where there is a ceiling hoist installed, a portable lifter is also provided for backup support. This may include where the person has a fall or wants to transfer onto a recliner chair or into the car.[13]

[13] Exhibit 4.

38.  In her first report, Ms Hammond commented that the most appropriate location for a ceiling hoist is: “over the bed for the initial transfer on/off the bed onto appropriate mobility equipment/attendant propelled commode.”[14]

39.  Ms Hammond pointed out that independence with transfers using the body support system and ceiling hoist requires completion of the entire task unassisted. In turn that includes:

… being able to use the controller to position the body system over where she is lying, position the thigh supports, operate the controller to manoeuvre herself over the commode and then wheel herself into the bathroom and complete her morning routine. This may be achievable for a person with good upper body strength and suitably accessible bathroom… However, as she requires support with her personal care (wheeling a commode, showering, drying and dressing routine, toileting), the provision of body support system with a ceiling hoist will not reduce her need for support.[15]

40.  In evidence Ms Hammond confirmed her view that a ceiling hoist should be positioned above the bed. The transfer to commode   must be supported by a carer. She then pointed out that the ensuite bathroom is problematic because the shower is in a corner close to the door. Ideally it should be opposite the door. The current shower alcove has a glass surround and it is narrow. Ideally it should not have a screen, at most a curtain. There is a small lip which prevents level access into the shower recess. That is not ideal. Mr Ransom has modified the shower chair with casters. That, too, is not ideal from Ms Hammond’s perspective although it is practical from Mr Ransom’s perspective. Ms Hammond confirmed that a commode would still be required even if the bathroom was fitted with a ceiling hoist or a mobile hoist. Applying a broad range of estimates significant modification to Ms Ransom bathroom could cost in the vicinity of $30,000. A minor modification could be in the vicinity of $2000. In an ideal world Ms Hammond would support some modification to Ms Ransom’s bathroom to make it suitable for her.

41.  Ms Hammond confirmed in evidence that the most practical solution in the lounge room is a mobile hoist and recliner lift chair. She stated that the recliner chair can be manoeuvred into a semi-standing position enabling the person to be transferred using a sling hoist. In principle, the recliner gives the person additional support. She said that mobile hoists, which are recommended for transfers outside the bedroom, can have casters in accordance with the surface that the device will be travelling over. A trial would be required in accordance with normal practice.

42.  In evidence Ms Hammond referred to the use of the portable urination device urinal which assists with toileting as it avoids the need to transfer onto the toilet, although not appropriate for bowel movement.

43.  On behalf of Ms Ransom, it was submitted that the commode has not been tested and is not required if a ceiling hoist is fitted in the bathroom. Similarly, a recliner chair has not been tested and is not required in the lounge room if l a ceiling hoist is fitted.[16]

[16] Exhibit 1.

CONSIDERATION

44.  In McGarrigle v National Disability Insurance Agency, the term ‘support’ is described by Mortimer J as ‘a practical description of the means by which a person with disability is assisted.’ [17]

[17] [2017] FCA 306 at [88].

45. The relevant provisions of the NDIS Act have been set out above. In considering whether the funding for the ceiling hoist tracks in the lounge room and in the ensuite bathroom is a reasonable and necessary support, the Tribunal must have regard to the criteria in section 34 (1) of the NDIS Act as further elaborated in the Support Rules.

46. The criteria which are set out in section 34(1) are cumulative. All of the criteria in s 34 (1) must be satisfied in order for a reasonable and necessary support to be funded. The primary issue in contention was the question of whether the requested supports represented value for money in accordance with s 34 (1) (c).

The support will assist the participant to pursue the goals, objectives and aspirations in the participant’s statement of goals and aspirations: s 34 (1) (a) of the NDIS Act

47.  Ms Ransom’s requested supports address aspects of the short-term goals in her NDIS plan, such as assisting her to remain safe at home, increasing her well-being and health, while sustaining informal supports. The criteria in s 34 (1) (a) are met.

The support will assist the participant to undertake activities, to facilitate the  participant’s social and economic participation: s 34 (1) (b) of the NDIS Act

48.  This requirement is met. For example, the requested supports would assist Ms Ransom with one of her medium term goals, which aims to increase her access to all areas within her home. A theme in her goals is to improve her health, strength and balance so as to increase her access to the community and to engage with her social networks.

The support represents value for money in that the costs of the support are reasonable relative to both the benefits achieved and the cost of alternative support: s 34(1)(c) of the NDIS Act

49. Rule 3.1 of the Support Rules, provides further guidance as follows:

Value for money

3.1. In deciding whether the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support, the CEO is to consider the following matters:

(a)whether there are comparable supports which would achieve the same outcome at a substantially lower cost;

(b)whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long‑term benefit to, the participant;

(c)whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);

(d)for supports that involve the provision of equipment or modifications:

(i)    the comparative cost of purchasing or leasing the equipment or modifications; and

(j)    whether there are any expected changes in technology or the participant’s circumstances in the short term that would make it inappropriate to fund the equipment or modifications’

(e)whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides;

(f)whether the support will increase the participants independence and reduce the participant’s need for other kinds of supports (for example, some home modifications may reduce a participant’s need for home care)

50.   The effect of Ms Hammond’s evidence is that it is standard practice to place the one ceiling hoist over the bed. Additional ceiling hoists in the lounge and in the ensuite would not obviate the need for a mobile hoist elsewhere. A ceiling hoist in the bathroom does not obviate the need for a commode as the commode is necessary for postural support

51.  Ms Hammond told the Tribunal that there are numerous types of slings which are available. It is necessary to ensure that the correct and most comfortable sling is prescribed. In addition, the carer needs to be trained in providing assistance for the transfer.

52.  For the lounge room Ms Meiring recommended installation of a fixed ceiling hoist track with lateral motor and Sure Hands Body Support system. The cost is $18,600.84.  Similarly, Ms Meiring recommended the installation of a fixed ceiling hoist track with powered traverse and Sure Hands Body Support system for the ensuite bathroom. The cost is $26,931.64. The total cost is $45,532.48.

53.  The Agency’s solution for Ms Ransom costs $9510.51. Her solution costs an additional $36,021.97. The Agency’s solution provides for   a portable hoist and sling for transfers, an attendant propelled wheelchair with seating support, attendant propelled commode with swing away arms, a recliner lift chair, a portable urination device and funding for occupational therapy support for training in use of the portable hoist.[18] Ms Ransom does not want any of those items

[18] Exhibit 6.

54.  The Tribunal considers that the approach which Ms Hammond recommended is preferable. She considered that there is no benefit in having multiple ceiling hoists in the home. Multiple hoists do not reduce the need for Ms Ransom for assistance from another person with her transfers. [19]The Tribunal accepts Ms Hammond’s evidence.

[19] Exhibit 4.

55. In consideration of the matters specified in the rule 3.1 of the Support Rules, the Tribunal is not satisfied that the requirement of value for money is met.

The support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice: s 34 (1) (d) of the NDIS Act

56. Rule 3.2 of the Support Rules states:

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 and 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.

57.  Ms Hammond has extensive experience as an occupational therapist spanning almost 40 years. Her experience includes work in private practice and government agencies and includes case management, training and development, assessments, rehabilitation in aged care, disability, community care and workplaces.[20] Her experience and knowledge of current good practice has led her to conclude that the installation of multiple ceiling hoists is not likely to be effective and beneficial for Ms Ransom. In understanding the differing perspectives about the best form of assistive technology to meet Ms Ransom’s needs in her current environment, Ms Hammond suggested that Ms Ransom: – ‘requires the professional support of an occupational therapist who understands her mobility, transfers and functional needs and can engage her in the decision-making of the most appropriate equipment. She and her support workers/family will require training in the use of the assistive technology.’[21]

[20] Exhibit 5.

[21] Ibid.

58.  The Tribunal is not satisfied that the requested supports are likely to be effective and beneficial for Ms Ransom.

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: S 34 (1) (e) of the NDIS Act

59.  This requirement is satisfied.

The support is most appropriately funded or provided through the NDIS and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered (i) as part of a universal service obligation; or (ii) in accordance with the reasonable adjustments required under a law dealing with discrimination on the basis of disability: S 34 (1) (f) of the NDIS Act.

60.  For the reasons set out above, the Tribunal is not satisfied that the requested supports are most appropriately funded or provided through the NDIS. Accordingly, this requirement is not met.

Summary

61.  Ms Hammond recommended a mobile hoist and recliner chair for the lounge room. However, as that is not Ms Ransom’s preferred solution, it is a matter that can be discussed further together with other options in future planning discussions that she has with the Agency. So too, Ms Hammond’s recommendation for the ensuite bathroom does not accord with Ms Ransom’s preferred solution. That is another matter which is capable of being considered further in subsequent discussions between Ms Ransom and the Agency. Ms Hammond’s recommended solutions are in effect a package and Ms Ransom’s solutions are an alternative package. Picking and choosing parts of alternate packages is not the ideal approach at this stage.

62.   The effect of this decision combined with the agreement made earlier about the ceiling hoist in the bedroom, tends to suggest that the remaining components of Ms Hammond’s proposals would enhance the outcomes in the ways that she has outlined. However, Ms Ransom’s preferences, aims and objectives are critical in progressing to the next steps in a holistic solution.

CONCLUSION

63. For the reasons which have been set out, the criteria in s 34(1)(a), (b) and (e) of the NDIS Act are satisfied. The primary focus of the review was paragraph s 34 (1)(c) which concerns the question of value of money. The Tribunal finds that the requested supports are not value for money and hence s 34(1)(c) of the NDIS Act is not satisfied. As discussed above, the Tribunal is not satisfied that the requirements of s 34(1)(d) are met. As all of the six requirements in s 34(1)(a) to (f) must be fulfilled for a support to be reasonable and necessary, it follows that Ms Ransom’s requested supports are not most appropriately funded or provided through the NDIS.

DECISION

64.   The decision under review is affirmed.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for the decision herein of Member I Thompson.

.............[sgnd]......................
Associate

Dated:  23 December 2021

Date of hearing:

25 and 26 October 2021

Applicant’s representative:

Ms Jacinta Coates

Brain Injury SA

Counsel for the Respondent:

Solicitor for the Respondent:

Ms Julia Davey

Ms Maria Pappas

Australian Government Solicitor