Renouf and National Disability Insurance Agency

[2022] AATA 3207

Renouf and National Disability Insurance Agency [2022] AATA 3207 (5 October 2022)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2020/8053

Re:Ms Renay RENOUF

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

Decision

Tribunal:Member T Bubutievski

Date:5 October 2022

Place:Sydney

The Tribunal sets aside the decision under review and remits the matter for reconsideration with a direction that on or before 18 October 2022, a new statement of participant supports be approved for Ms Renouf which includes a car boot opener to the value of $1,980.00.

.................................SGD.......................................
Member T Bubutievski

CATCHWORDS

NATIONAL DISABILITY INSURANCE SCHEME – participant supports – far infrared sauna – whether supports are reasonable and necessary – whether supports are value for money – whether supports are effective and beneficial – decision set aside and remitted for reconsideration

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) ss. 37, 38AA
National Disability Insurance Scheme Act 2013 (Cth) ss. 3, 4, 22, 23, 24, 33, 34, 100, 103
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) r. 3.1, 3.2, 3.3

CASES

McGarrigle and National Disability Insurance Agency [2017] FCA 308

SECONDARY MATERIALS

NDIS, Does the support meet the reasonable and necessary criteria? (Web Page) < FOR DECISION

Member T Bubutievski

5 October 2022

INTRODUCTION

1. Ms Renay Renouf is a 56-year-old participant of the National Disability Insurance Scheme (NDIS). This application involves a review of a decision made on 11 November 2020 under s 100 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) affirming a decision made on 4 May 2020 under s 33(2) of the NDIS Act, to approve a statement of participant supports (SOPS) forming part of Ms Renouf’s NDIS plan.

2. Ms Renouf was granted access to the NDIS on the basis that she met the ‘disability requirements’ under s 24 of the NDIS Act, as well as the other access requirements under ss 22 and 23 of the NDIS Act.

3. Ms Renouf was represented by Ms Cathy Saleta, a disability advocate from Gippsland Disability Advocacy Inc. The Respondent was represented by Mr Christopher Lum, of counsel.

   BACKGROUND

4. Ms Renouf has been a participant in the NDIS since 9 November 2019, when it was determined that she met the disability criteria set out in s 24 of the NDIS Act.[1]

   [1] Respondent’s Statement of Facts, Issues and Contentions, dated 21 December 2021, p 1.

5. Ms Renouf lives independently with her family in regional Victoria.[2] Ms Renouf has scleroderma and Raynaud’s phenomenon. She is under the care of a rheumatologist from Monash Health, Associate Professor Joanne Sahhar. Ms Renouf’s medical conditions limit her movement and function and require her to stay warm.[3]

   [2] Refer T-Documents, T5, p 64.

   [3] Refer T-Documents, T4.

6. Ms Renouf’s treating allied health professionals also include:

   (a)Ms Stacy Poke and Ms Rebecca Griffin, physiotherapists;

   (b)Dr Sue Comerford, a general practitioner; and

   (c)Dr Grace Couchman, a clinical psychologist.

   Ms Renouf provided written evidence from these treating practitioners.

   First NDIS Plan – August 2020

7. On 13 August 2020, a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (NDIA) approved a statement of participant supports (First SOPS), resulting in the commencement on 13 August 2020 of an NDIS plan for Ms Renouf (First NDIS Plan).[4] The First SOPS was for a 12-month period to 13 August 2021. This plan provided for core supports totalling $65,393.28; capacity building supports totalling $6,983.64; and assistive technology supports of $1,500.00. The plan was self-managed and could be used flexibly.

   [4] Refer T-Documents, T9.

   Internal review decision – November 2020

8. On 27 August 2020 Ms Renouf made a request for an internal review under s 100 of the NDIS Act.[5] In this request, she sought funding for the following additional supports which had not been included in the First SOPS:

   (a)a Prodapt car boot opener at a cost of $1,980.00;

   (b)a Sun Stream Evolve 30 Far Infrared Sauna at a cost of $6,745.00; and

   (c)weekly physiotherapy and six hours of assistive technology assessments.[6]

   [5] Refer T-Documents, T6.

   [6] Refer T-Documents, T1.

9. On 11 November 2020, a delegate of the CEO of the NDIA made an internal review decision under s 100 affirming the decision not to approve funding for the car boot opener and far infrared sauna (the decision under review).[7] The reviewer considered that the requested supports did not meet the “reasonable and necessary” criteria under s 33(5)(c) of the NDIS Act.[8] Weekly physiotherapy and six hours of assistive technology assessments were approved.

   [7] Refer T-Documents, T1F.

   [8]Refer T-Documents, T1F.

   Second NDIS Plan – November 2020

10. By letter dated 11 November 2020, a delegate of the CEO of the NDIA approved a further statement of participant supports (Second SOPS) resulting in the commencement on 11 November 2020 of a further NDIS plan for Ms Renouf (Second NDIS Plan).[9] The review date of the Second SOPS was 11 November 2021. The Second NDIS Plan incorporates the increased funding for physiotherapy and assistive technology assessment sought, increasing the capacity building funding to $11,445.41. Other than this, the funding provided in the Second NDIS Plan is the same as the First NDIS Plan.

    [9] Refer T-Documents, T10.

11. Ms Renouf lodged an application for review by this Tribunal pursuant to s 103 of the NDIS Act on 7 December 2020.

12. In the course of the proceeding in the Tribunal, on 7 July 2021, the parties agreed that the Respondent will fund the cost of a car boot opener to a value of $1,980.00.

    ISSUES

13. The Tribunal is required to undertake a merits review and will stand in the shoes of the original decision maker who made the decision to approve the SOPS for Ms Renouf. The primary issue in this proceeding relates to the type of supports that should be included in Ms Renouf’s SOPS. Specifically, the support in dispute is the Sun Stream Evolve 30 Far Infrared Sauna and installation of the same.

    LEGISLATIVE FRAMEWORK

14. The NDIS was established under the NDIS Act and operates in pursuit of the objectives set out in s 3 of the NDIS Act. Section 4 establishes general principles guiding actions under the NDIS Act.

15. A participant’s plan is prepared in accordance with s 33 of the NDIS Act and must include a SOPS. The SOPS must be approved in accordance with the NDIS Act and any regulations made under the NDIS Act, such as the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (Supports for Participants Rules).

16. Under s 33(5) of the NDIS Act, the CEO (or his or her delegate), in deciding whether to approve the SOPS under s 33(2), must have regard to a number of factors including the participant’s statement of goals and aspirations and relevant assessments conducted in relation to the participant, and be satisfied the supports are “reasonable and necessary”.

17. Subsection 34(1) of the NDIS Act requires six mandatory criteria to be met before a support is considered to be a “reasonable and necessary” support. Subsection 34(2) provides that the Supports for Participants Rules may prescribe methods or criteria to be applied or matters to which the decision maker is to have regard, in deciding whether they are satisfied that the criteria under s 34(1) have been met in respect of a requested support.

18. Subsection 34(1) of the NDIS Act provides, with respect to “reasonable and necessary” supports:

    (1)For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:

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

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

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

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

    (e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and 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 reasonable adjustments required under a law dealing with discrimination on the basis of disability.

19. The Tribunal notes the observations of Mortimer J in McGarrigle v National Disability Insurance Agency [2017] FCA 308 (McGarrigle) at [43] in part:

    The [Supports for Participants Rules] are an important element of the legislative scheme, introducing the ability to modify the operation of ss 33 and 34 by, for example, excluding certain kinds of supports from inclusion in participant plans.  It is through the Rules that the executive is able to implement

    …

    some policy decision-making about the nature and extent of supports to be provided or funded under the NDIS.

20. The Tribunal has considered the operational guidelines published by the Respondent on its website; specifically, those relating to the assessment of whether a requested support meets the “reasonable and necessary” criteria under s 34(1) of the NDIS Act.[10]

    EVIDENCE AND SUBMISSIONS

    [10] NDIS, Does the support meet the reasonable and necessary criteria? (Web Page) < and witnesses

21. Ms Renouf gave evidence at the hearing. The NDIA called Dr Stephen Potter, a rheumatologist who had been engaged for the purpose of providing an expert report about any effect a far infrared sauna could have on Ms Renouf’s medical conditions.

    Documentary evidence

22. Pursuant to its obligations under ss 37 and 38AA of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), the NDIA lodged a set of documents on 24 December 2020 (T-Documents).  

23. The NDIA also submitted the expert report of Dr Stephen Potter.[11]

    [11] Report of Dr Stephen Potter, dated 11 August 2021.

24. Ms Renouf relied on the following documentary evidence:

    (a)a supporting letter from Ms Jo Meagher, physiotherapist, dated 11 May 2020[12], and a supporting evidence form completed by Ms Meagher on 11 September 2019[13];

    [12] Refer T-Documents, T1A.

    [13] Refer T-Documents, T3.

    (b)a quotation for the Sun Stream Evolve 30 Far Infrared Sauna for $6,745.00 including supply and installation[14];

    [14] Refer T-Documents, T1B.

    (c)a supporting letter from Associate Professor Joanne Sahhar, dated 6 October 2020[15];

    [15] Refer T-Documents, T1D.

    (d)an Assistive Technology Assessment by Ms Kerrie Thomsen, occupational therapist, dated 6 June 2020[16];

    [16] Refer T-Documents, T5.

    (e)the report of Ms Rebecca Griffin, physiotherapist, dated 27 September 2021; and undated heart and blood pressure observations by Ms Griffin[17];

    (f)the report of Ms Stacey Poke, physiotherapist, dated 28 February 2021[18];

    (g)a letter from Dr Grace Couchman, clinical psychologist, dated 10 November 2021[19];

    (h)a letter from Dr Sue Comerford, dated 22 October 2021[20];

    (i)an email from Ms Renouf, dated 12 October 2021, detailing the effects of her medical conditions and showing her body under thermal imaging before and after use of an infrared sauna;[21]

    (j)a letter from Ms Sarah Belsar, occupational therapist, dated 15 November 2021[22];

    (k)Ms Renouf’s energy bills and energy usage[23];

    (l)an article, “Infrared Light Therapy for Better Blood Flow”, undated, from sunlighten.com.au (Sunlight Saunas Pty Ltd)[24];

    (m)an article, “Mild Infrared A Hyperthermia in Treatment of Systemic Scleroderma” by Meffert H, Buchholtz I and Brenke A, published in Dermatologische Monatsschrift, dated 1 January 1990[25]; and

    (n)specifications, Sun Stream Evolve 30 Far Infrared Sauna[26].

    [17] Report of Ms Rebecca Griffin, dated 27 September 2021; and undated observations received by the Tribunal on 16 November 2021.

    [18] Report of Ms Stacey Poke, dated 28 February 2021.

    [19] Letter of Dr Grace Couchman, dated 10 November 2021.

    [20] Letter of Dr Sue Comerford, dated 22 October 2021.

    [21] Applicant’s Statement, received by the on Tribunal 12 October 2021.

    [22] Letter of Ms Sarah Belsar, dated 15 November 2021.

    [23] Energy Bills and description of usage, received by the Tribunal on 7 February 2022.

    [24] Refer T-Documents, T1H.

    [25] Refer T-Documents, T1I.

    [26] Refer T-Documents, T1J.

    Submissions

25. The following submissions were lodged by the parties in this matter:

    (a)Ms Renouf’s Statement of Facts, Issues and Contentions (Ms Renouf’s SOFIC), undated, received by the Tribunal on 7 February 2022[27];

    (b)Ms Renouf’s response to the Respondent’s Statement of Issues (Ms Renouf’s Response), dated 9 November 2021[28];

    (c)the NDIA’s Statements of Issues, dated 1 February 2021[29];

    (d)the NDIA’s Statements of Issues, dated 4 November 2021[30]; and

    (e)the NDIA’s statement of Facts, Issues and Contentions, dated 21 December 2021 (NDIA’s SOFIC)[31].

    CONSIDERATION

    [27]Applicant’s Statement of Facts, Issues and Contentions, dated 7 February 2022.

    [28] Applicant’s Response to Respondent’s Statement of Issues dated 4 November 2021, received by the Tribunal on 11 November 2021.

    [29] Respondent’s Statement of Issues, dated 1 February 2021.

    [30] Respondent’s Statement of Issues, dated 4 November 2021.

    [31] Respondent’s Statement of Facts, Issues and Contentions, dated 21 December 2021.

    Ms Renouf’s Evidence Provided During the Hearing

26. Ms Renouf was diagnosed with scleroderma in 2014. Scleroderma results in an overproduction of collagen, which leads to hardening and fibrosis of the skin and organs. Ms Renouf said that the condition affects her whole body, and that within six months of her diagnosis she went from being healthy to being unable to tie her shoelaces, grip things, or lift her arms above her shoulders. It also causes gastric reflux, which makes her vomit. It affects her breathing, eating and bowel function. Her joint mobility is reduced. She suffers from fatigue. She explained that the basic activities of daily living are difficult for her, and the fact that her sphincters do not close properly discourages her from going out in case she has an accident. She does not like to eat in public.

27. Ms Renouf also has Raynaud’s phenomenon. This affects her fingers and toes, which are very sensitive to changes in temperature. They turn white and it is painful. On questioning, Ms Renouf said that she can be affected by Raynaud’s phenomenon ten or fifteen times per day if she does not manage her condition properly, but it is less frequent in summer. Sometimes she sees the symptoms start and she is able to stop them within about 20 minutes. She lives in a specially built energy-efficient home, which she keeps at a constant temperature. She said that she has changed a lot of things to try to manage and “future proof” her environment.

28. Ms Renouf said that Associate Professor Sahhar has said that the far infrared sauna has the potential to assist. It is not a recommended treatment, but it is something that patients with her condition have anecdotally found helpful. Ms Renouf explained that prior to the pandemic she tried a public infrared sauna on four occasions. There are now no accessible public facilities near her. She did not think that she would be able to hire an infrared sauna. She did not think that it was “an outrageous expense” and noted that the bed that had been funded for her through the NDIS cost about the same amount as the sauna.

29. Ms Renouf described the use of the sauna as being “like an exercise warm up” and said that she felt that it softened her skin and increased her joint mobility. A thermal camera was also used to measure her body heat. Ms Renouf said that the use of the sauna warms her body better and keeps it warmer than she is able to achieve using layers of clothing. After using the sauna, she is able to wear fewer layers. Ms Renouf’s disability advocate (Ms Saleta) noted that wearing additional clothing is the preferred management method suggested by the Respondent, but that doing so affects Ms Renouf’s mobility.

30. Ms Renouf was of the opinion that the sauna also improves her circulation, and improves the nutrients and oxygen levels in her body. She felt that it provided additional benefits to her that normal heating does not. She explained that she also experiences anxiety over the risk of ulcers on her fingers, and this was alleviated by the use of the device. She feels that it is a better way of heating her body than the conventional methods and explained that during winter she has to heat the entire house, which is expensive.

31. Ms Renouf has a constant low level of generalised pain due to skin and joint tightness. She has a tear in her left ankle which is always painful. Her hands are always painful. She also has “holes” in her elbows where she has previously had ulcers, and these are painful. Ms Renouf said that the condition has changed her life and her family’s life enormously. She described it as “challenging and depressing overall” and said that she “grasp[s] at the things that may be of some help managing long term”.

32. Ms Renouf confirmed that she has not been diagnosed with either peripheral artery disease or atherosclerosis - two conditions for which there is some support for the use of far infrared therapy (not specifically saunas).

33. Ms Renouf manages her scleroderma and Raynaud’s phenomenon by keeping her core temperature warm. Immersing her hands or body in hot water can help, but her skin is easily damaged. She wears thermal underwear, ugg boots and gloves. She uses a heater or sits on her hands. If she goes out, she has a bag with extra clothes, blankets, and a thermos of warm water. She uses electric blankets, jackets with heating pads and hand warmers. She tries to avoid air conditioning and sudden changes of temperature, such as when getting in and out of the car or going into the supermarket. She cannot take the common medication for the condition, calcium channel blockers, because it would further lower her blood pressure, which is already low. She thought that Associate Professor Sahhar had already tried any type of medication that she could have.

34. The Tribunal asked Ms Renouf about her trial of the infrared sauna in 2020. Ms Renouf said that she did four sessions in Inverloch, where her physiotherapist was located, and then went straight to physiotherapy. She said that the unit she used was more expensive and smaller than the unit she has asked for. It was hard for her to sit in because of her physical limitations and had features that she did not need. Ms Renouf said that she could feel her body heat up quickly in the sauna, and that she would perspire and her skin would redden. She said that she felt much warmer for about four hours afterwards and her skin was more malleable for physiotherapy. Ms Renouf said that she felt warmer up until halfway through the next day and also had some pain relief.

1. Ms Renouf said that she did not think that she used the sauna often enough or regularly enough to see long-term effects. She could not recall if she had any significant ulcers at the time, although she does always have one on her right middle finger. She thought that the sauna had a slight impact on her range of movement, but not enough for a substantial change to her function.

2. Ms Renouf attended an infrared sauna at a home business. This business is no longer operating, so Ms Renouf cannot access it. Ms Renouf thought that if she had her own sauna, she would use it every second day, perhaps more often in winter. The Sun Stream Evolve 30 Far Infrared Sauna was chosen because she can sit in a semi-reclined position to manage her reflux and bend her legs more effectively than in a smaller unit. It also has panels on the doors, which means that no part of her body will be cold. The door is wide in case she needs a wheelchair later on. It has a lifetime warranty and no additional delivery and set up costs. It is a mid-range product and can be placed in a wheelchair accessible position in her home.

3. The alternative way of managing her condition is to wear extra clothes and keep her environment warm. Ms Renouf said that it is hard to manage many layers and she also gets skin irritations from the seams or the wrong fabrics. It is inconvenient, but she puts up with it. She also uses warm food and drink and heat packs. She keeps the house at a constant temperature and takes steps to avoid exposure to cold, or to stress, which may trigger the Raynaud’s phenomenon. Ms Renouf hoped that her condition may be improved by an increase in circulation generated by a far infrared sauna. She did not imagine that it would improve her social connections but did think that it would improve her anxiety about ulcers.

4. Ms Renouf said that although the NDIA does not see a significant benefit, her physiotherapist has seen increased warmth and blood flow after the use of the sauna, and she feels that the improvement in her overall wellbeing is significant to her. She thought that she would experience improvements in her physical and mental health from a far infrared sauna, although she will always have significant symptoms.

5. Ms Renouf’s disability advocate (Ms Saleta) said that she thought that the impact of the need to wear and carry extra clothes on Ms Renouf’s social and community access and participation has not been given adequate weight by the NDIA. Ms Renouf said that this draws attention to her, and she chooses to go out less. She has lost a lot of confidence. She said that after she came out of the sauna she was able to just wear a T-shirt and stay like that for the rest of the day. She said that she felt much more normal, and that is important to her. Ms Saleta said that this is capacity building, as Ms Renouf is then able to go into the community and have a normal life like her peers.

6. Ms Renouf said that the main treatment for her scleroderma and Raynaud’s phenomenon is to stay warm. She thought that the focus should be on the far infrared sauna being an effective heating device which simply offers a different way of heating her body on a cellular level. She said that it is supported by her physiotherapist, occupational therapist and rheumatologist. She said that it was “no small thing” for Associate Professor Sahhar to write a letter of support. She was of the belief that the sauna has no risks and can be a funded treatment under WorkCover (WorkSafe Victoria), the Transport Accident Commission and NDIS. She said that Beyond Rest, a supplier in Melbourne, has clients funded by the NDIS using the facilities. Ms Renouf said that although she has not been diagnosed with a medical condition which is known to be amenable to infrared treatment, the Scleroderma Foundation notes that people with her cluster of symptoms are at 30% higher risk of complications and amputations and she should be considered to be in an equivalent group.

7. Ms Saleta said that the NDIS has an obligation to be innovative, and that this can be looked on as an innovative capacity building therapy. She said that in the alternative, the NDIA should pay Ms Renouf’s electricity bills for the heating of her home, which would probably cost more.

   Supporting Evidence filed by Ms Renouf

8. The supporting letter from Associate Professor Joanne Sahhar, dated 6 October 2020[32], states:

   “I believe the Infrared Device has the potential to:

   ·reduce the incidence of digital ulcers which can be very painful, costly to manage and have a significant impact on Renay’s functional capacity for personal care and other daily tasks.

   ·delay the onset of fixed joint contractures which would have a significant, further, permanent impact on Renay’s functional capacity, including her mobility.

   ·reduce pain and other symptoms associated with her conditions, allowing her to maintain her current level of independence over a longer period of time than would be possible without it.”

   [32] Refer T-Documents, T1D.

9. The supporting letters from Ms Renouf’s physiotherapists state that physiotherapy is less painful and more beneficial for Ms Renouf after the use of the infrared sauna because she has improved blood flow and skin pliability.[33] They posit that the heating mechanism is beneficial for Ms Renouf as it provides the same results as exercise, but Ms Renouf cannot exercise properly due to her condition. In her assistive technology assessment, the physiotherapist reports that Ms Renouf’s specialist recommended that Ms Renouf buy an infrared sauna to help with skin softening, joint mobility and pain.[34]

   [33]   Report of Ms Rebecca Griffin, dated 27 September 2021; and report of Ms Stacey Poke, dated 28 February 2021.

   [34]  Refer T-Documents, T5.

10. Dr Sue Comerford gives an opinion that an infrared sauna would provide Ms Renouf with symptomatic pain relief and reduce the incidence of ulceration.[35]

    [35] Letter of Dr Sue Comerford, dated 22 October 2021.

11. Dr Grace Couchman reports that Ms Renouf has described the infrared sauna as providing her with great relief.[36]

    [36] Letter of Dr Grace Couchman, dated 10 November 2021.

12. One of the two articles provided by Ms Renouf is from an infrared sauna supplier, and does not contain much in the way of scientific research.[37] The article in relation to infrared treatment for scleroderma is a small study of seven patients, only three of whom reported a reduced frequency of Raynaud’s phenomenon attacks with the use of infrared therapy. It was done over 30 years ago, and Ms Renouf acknowledged that she has not been able to find further academic support for her position.[38]

    [37] Refer T-Documents, T1H.

    [38] Refer T-Documents, T1I.

    Dr Stephen Potter’s Evidence

13. Dr Stephen Potter is a rheumatologist who has been in practice since 1982. He conducted a full literature review of the evidence for the use of far infrared therapy for scleroderma and Raynaud’s phenomenon. In his view, the treatment would need to be in line with current good practice. Dr Potter said that if there was any evidence of proven efficacy for far infrared therapy, he would expect to see a randomised controlled trial published in a reputable journal.[39]

    [39] Report of Dr Stephen Potter, 11 August 2021, page 10.

14. In his report dated 11 August 2021, Dr Potter advised that there is no evidence to support the merits of far infrared sauna therapy for the treatment and management of Ms Renouf’s condition. His opinion is that “… no proven treatment will alter, delay or improve the final outcome...”[40]. He said that a number of complementary and alternative therapies have been investigated in randomised controlled trials, with an overall lack of proof. He noted that a case report from 2017 indicated that a high temperature sauna may have assisted in the treatment of refractory toe ulcers, but that this was a single case with no controls and no statistical analysis. The same could be said for a case study about the use of Waon therapy. He has treated about 50 scleroderma patients and has not had any using an infrared sauna. At the hearing, Dr Potter said that if the use of an infrared sauna is helpful, there “should be countless articles showing that it is proven and helpful”.

    [40] Report of Dr Stephen Potter, 11 August 2021, page 2.

15. Dr Potter noted in his report that the cause of scleroderma is unknown, and the symptoms described by Ms Renouf are present in 90% of patients. First line treatment includes encouraging the patient to keep warm. He acknowledged that this treatment is also a treatment about which evidence is lacking, but that there have now been many years of anecdotal evidence to the effect that it is helpful. Dr Potter advised that the European League Against Rheumatism 2009 recommendations, as updated in 2017, cover the range of recommended treatments for scleroderma and associated conditions like Raynaud’s phenomenon, and do not include the use of an infrared sauna. The recommended treatments are oral, and then intravenous, medications.

16. At the hearing, Dr Potter was asked if the reference to the need to maintain core body temperature would be broad enough to encompass an infrared sauna. Dr Potter was unable to offer an opinion on this, as he said that he had no data about the use of an infrared sauna for that purpose. He did not think that the limited research about the benefits of infrared sauna treatment in peripheral artery disease and cardiovascular disease could be extrapolated to scleroderma, as the disease process is different.

17. Dr Potter’s view was that Associate Professor Sahhar was “understandably optimistically speculating” about the possible effects of the infrared sauna, and that it is “possible” that there may be a positive effect, but that it is “not likely”. Dr Potter was of the view that the use of a far infrared sauna is a matter of personal choice by Ms Renouf. He said that as a specialist, his job is to “be moderately enthusiastic if the evidence allows me”, as patients require hope. He said that he did not want to absolutely dismiss the suggestion that the infrared sauna may have a benefit, but there is no evidence to support its usefulness and safety.

    The NDIA’s Case

18. The NDIA submitted that the Tribunal could not be satisfied on the material before it that the claimed support meets the requirements of ss 34(1)(c), (d) and (f) of the NDIS Act.[41] They argued that the correct and preferable decision in this case would be to replicate the existing supports in the Second NDIS Plan and add the car boot opener to a value of $1,980.00 as agreed, but not include the far infrared sauna. The NDIA referred to Rules 3.2 and 3.3 of the Supports for Participant Rules and submitted that the evidence does not establish that the far infrared sauna is likely to be effective and beneficial. All that is acknowledged is a possibility that it may assist. At best, the evidence only shows isolated reports of positive outcomes.

    [41] Respondent’s Statement of Facts, Issues and Contentions, dated 21 December 2021.

19. The NDIA noted Ms Renouf’s evidence about the improvements she felt from her trial of the far infrared sauna and agreed that the Tribunal must have regard to this evidence, but submitted that it could not be determinative in the absence of scientific evidence or evidence of significant functional improvement. Nor could Ms Renouf’s letters of support be given significant weight when the authors had not been available for examination and the claims made in the letters are not supported by the literature review.

20. The Respondent advised that although $6,745.00 is a relatively modest sum, the alternatives of additional clothing and heat packs are cheaper, even if it accepts that Ms Renouf’s skin may be damaged from too much exposure to hot water. This would likely be so even if a proportion of heating bills were included. Further, there is limited evidence that a far infrared sauna will reduce Ms Renouf’s need for other supports. Even if it does generate some improvement, Ms Renouf will continue to experience significant symptoms. The NDIA also gave an opinion that this would be a medical treatment rather than a capacity building support if it did happen to improve Ms Renouf’s condition, and it should therefore not be funded by the NDIS.

    Mandatory Criteria

21. Subsection 34(1) of the NDIS Act sets out a set of mandatory criteria that a support must meet to be considered “reasonable and necessary”. Unless the Tribunal is positively satisfied that the criteria have all been met in respect of a claimed support, the Tribunal is bound to find that the claimed support is not “reasonable and necessary”.[42]

    [42] Re BIJD and National Disability Insurance Agency [2018] AATA 2971, page 49.

22. In this case, the Respondent submits that a far infrared sauna does not meet three of the six mandatory criteria – value for money (s 34(1)(c)); effective and beneficial (s 34(1)(d)); and most appropriately funded through the NDIS (s 34(1)(f)). The Tribunal examined these criteria, noting that a failure to meet any one criterion means that the support cannot be approved.

    Subsection 34(1)(c) – value for money

23. Subsection 34(1)(c) of the NDIS Act requires the Tribunal to be satisfied that 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 (comparable) supports. Rule 3.1 of the Supports for Participant Rules sets out matters the Tribunal is to take into account. The cost of the far infrared sauna is relatively modest, and when some proportion of Ms Renouf’s heating bills are considered (how much would need to be quantified), it will possibly cost about the same over its life as other supports. The question is whether or not it has a benefit. Ms Renouf has given subjective evidence that it is beneficial to her and it seems to have a psychological benefit if no other, but there is a real question about its actual benefit to Ms Renouf’s scleroderma and Raynaud’s phenomenon. Despite what Ms Renouf has said about her own experience and the various professional opinions she has provided, the evidence before the Tribunal is that there is very little objective proof that this treatment has any benefit. If there is no benefit, it does not matter what the device costs. If the benefit is seen to be simply a method of heating Ms Renouf’s body in accordance with her treatment plan, a far infrared sauna does not appear to be cheaper than conventional methods. The Tribunal is not satisfied that s 34(1)(c) is met.

    Section 34(1)(d) – effective and beneficial

24. The fourth mandatory criterion under s 34(1)(d) requires the Tribunal to be satisfied that the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice. Rules 3.2 and 3.3 of the Supports for Participant Rules set out that the Tribunal is to have regard to current good practice, and they refer to the type of evidence that the Tribunal might take into account.

25. This criterion is the crucial one in this case. The Tribunal needs to be satisfied that the far infrared sauna will be, or is likely to be, effective and beneficial for Ms Renouf, having regard to current good practice. Dr Potter gave evidence of current good practice, which does not include the use of a far infrared sauna. It does include staying warm, but doing so does not require such a device. The most the Tribunal could say on the basis of the evidence before it is that a far infrared sauna may provide some assistance. This falls short of a definitive statement that the support will be effective, or is even likely to be effective, and is fatal to Ms Renouf’s case. It does not meet the minimum threshold of being likely to be effective and beneficial.

26. While Ms Renouf is at liberty to purchase the device for herself, the evidence around its efficacy for her conditions is not at a level where it is reasonable to ask the taxpayer to fund it. Even if it was considered to be an innovative capacity building therapy, a better evidence base would be required before it could be funded from public funds. The Tribunal is satisfied that s 34(1)(d) is not met.

27. In light of this, the Tribunal did not proceed to consider the issue of whether the infrared sauna should be considered a treatment or a capacity building therapy. In addition, the Tribunal did not consider the issue of whether the infrared sauna is most appropriately funded through the NDIS (s 34(1)(f)).

    CONCLUSION

28. As s 34(1)(d) is not met, a far infrared sauna is not a “reasonable and necessary” support. It cannot be included in Ms Renouf’s SOPS. The Respondent has correctly concluded that the only change to Ms Renouf’s Second SOPS can be the addition of a car boot opener to a value of $1,980.00 as agreed between the parties.

29. Accordingly, The Tribunal sets aside the decision under review and remits the matter for reconsideration with a direction that on or before 18 October 2022, a new statement of participant supports be approved for Ms Renouf which includes a car boot opener to the value of $1,980.00.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for the decision herein of Member Tina Bubutievski

.................................SGD.......................................

Associate

Dated: 5 October 2022

Date(s) of hearing:	8 April 2022
Advocate for the Applicant:	Ms C Saleta, non-legal representative
Counsel for the Respondent:	Mr C Lum
Solicitors for the Respondent:	Ms F Taah, Australian Government Solicitor