RHRD and National Disability Insurance Agency

RHRD and National Disability Insurance Agency [2022] AATA 1766 (21 June 2022)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2020/5840
Re:RHRD
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Dr L Bygrave, Member
Date:21 June 2022
Place:Sydney

The Tribunal sets aside the decision made by the Respondent on 31 January 2022, which varied the reviewable decision made by the Respondent on 11 September 2020. In substitution, the Tribunal decides that:
·the Applicant is entitled, pursuant to subsection 33(2) of the National Disability Insurance Scheme Act 2013 (Cth), to those supports listed in the statement of supports in the Applicant’s NDIS plan that commenced on 31 January 2022; and
·the following items will be funded as reasonable and necessary supports for the Applicant in accordance with subsection 34(1) of the National Disability Insurance Scheme Act 2013 (Cth):
oa thermomix all-in-one kitchen machine; and
oa car fridge/freezer; and
oa 1500W pure sine wave power inverter; and
oa garden shed kit.

.....................................[sgd]...................................
Dr L Bygrave, Member
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – reasonable and necessary supports – where Applicant diagnosed with autism spectrum disorder level 2, global developmental delay and Turner syndrome – where Applicant has gastrojejunostomy for feeding – thermomix all-in-one kitchen machine – car fridge/freezer – power inverter – garden shed kit – whether requested supports are reasonable and necessary pursuant to subsection 34(1) of the National Disability Insurance Scheme Act 2013 (Cth) – whether support relates to disability – whether support relates to day-to-day living costs that are not attributable to disability needs – decision set aside
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 42D
National Disability Insurance Scheme Act 2013 (Cth) ss 3, 4, 31, 33, 34, 100, 209
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
CASES
McGarrigle v National Disability Insurance Agency [2017] FCA 308
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
SECONDARY MATERIALS
Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12)
REASONS FOR DECISION
Dr L Bygrave, Member
21 June 2022
INTRODUCTION

The Applicant, RHRD, is a female aged four and a half years old. The Applicant’s diagnoses include Turner syndrome, autism spectrum disorder level 2 and global developmental delay.
The Applicant is a participant in the National Disability Insurance Scheme (the NDIS). The Respondent, the National Disability Insurance Agency (the NDIA or the Agency), approved the Applicant’s NDIS plan on 29 June 2020; this plan, which commenced on 29 June 2020 and had a review date of 29 June 2021, included total funded supports of $118,452.53.[1]
[1] Exhibit T-T17.
Ms ‘A’, the Applicant’s mother, sought review of this decision pursuant to section 100 of the National Disability Insurance Scheme Act 2013 (Cth) (the Act) on behalf of the Applicant.
On 11 September 2020, the Respondent decided to increase the Applicant’s core budget and capacity building budget in her NDIS plan but refused her request for ‘funding for car fridge, inverter, thermomix, laundry service and garden shed’ (the internal review decision).[2] The Applicant commenced a NDIS plan on 11 September 2020 that had a review date of 11 September 2021 and included total funded supports of $158,058.35.[3]
[2] Exhibit T-T2.
[3] Exhibit T-T18.
Ms ‘A’ made an application to the NDIS Division of the Administrative Appeals Tribunal (the Tribunal) for review of the internal review decision on 21 September 2020.
In accordance with section 42D of the Administrative Appeals Tribunal Act 1975 (Cth) and by agreement of the parties, the Tribunal remitted the internal review decision to the Chief Executive Officer (CEO) of the NDIA for reconsideration on 14 January 2022.
On 31 January 2022, the Respondent varied the internal review decision and approved a NDIS plan for the Applicant that commenced on 31 January 2022 and had a review date of 31 January 2023. This plan comprised total funded supports of $259,584.27 and specifically addressed the Applicant’s request for additional support worker hours, a posture seat, and hours for occupational therapy, physiotherapy and psychology; however, this plan did not include funding for a thermomix, a car fridge/freezer, a power inverter or a garden shed.[4] It is this decision made by the Respondent on 31 January 2022 that is now the decision to be reviewed by the Tribunal.
[4] Exhibit A1.
The matter was heard by the Tribunal via videoconference on 25, 28 and 29 March 2022. The Applicant was represented by a disability support advocate and Ms ‘A’, and the Respondent was represented by legal counsel. Final written submissions from the parties were received by the Tribunal on 22 April 2022.
RELEVANT LEGISLATION
The objects and principles set out in the Act provide guidance on interpreting the statute.
The objects of the Act listed in section 3 include giving effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities[5]; enabling people with disability to exercise choice and control in the pursuit of their goals, and the planning and delivery of their supports; facilitating the development of a nationally consistent approach to the planning and funding of supports for people with disability; and promoting the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community. Paragraph 3(3)(b) of the Act further states that, in giving effect to the objects of the Act, regard is to be had to the need to ensure the financial sustainability of the NDIS.
[5] Done at New York on 13 December 2006 ([2008] ATS 12).
The general principles guiding actions under the Act are contained in section 4 and include affirming that people with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime; and that people with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development.
Relevant to this matter, subsection 4(11) of the Act further states:
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.
Reasonable and necessary supports
Chapter 3 of the Act sets out provisions for participants and their plans. Principles relating to plans are outlined in section 31 of the Act, which relevantly states:
The preparation, review and replacement of a participant’s plan, and the management of the funding for supports under a participant’s plan, should so far as reasonably practicable:
(a) be individualised; and
(b) be directed by the participant; and
(c) where relevant, consider and respect the role of family, carers and other persons who are significant in the life of the participant; and
(d) where possible, strengthen and build capacity of families and carers to support participants who are children; and
…
(g) be underpinned by the right of the participant to exercise control over his or her own life; and
(h) advance the inclusion and participation in the community of the participant with the aim of achieving his or her individual aspirations; and
(i) maximise the choice and independence of the participant; and
(j) facilitate tailored and flexible responses to the individual goals and needs of the participant…
Section 33 of the Act sets out matters that must be included in a participant’s plan: pursuant to paragraph 33(2)(b), a participant’s plan must include a statement that specifies the reasonable and necessary supports that will be funded under the NDIS.
The criteria for funding reasonable and necessary supports are set out in subsection 34(1) of the Act as follows:
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 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. [emphasis added]
Subsection 34(2) of the Act states that the NDIS rules ‘may prescribe methods or criteria to be applied’, or matters to which the CEO (and therefore the Tribunal) is to have regard, in deciding whether or not he or she is satisfied of the matters mentioned in subsection 34(1).
The relevant NDIS rules made by the Minister in accordance with subsection 209(1) of the Act are the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (the Support Rules), which form part of the legislation.
Operational Guidelines have also been drafted by the CEO of the NDIA to assist staff to make decisions and perform functions under the Act. These represent government policy and should be applied unless there is good reason not to do so.[6]
[6] Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[1979] AATA 179; (1979) 2 ALD 634.
ISSUES
The issues for determination in this matter are whether the following supports requested by the Applicant are reasonable and necessary in accordance with subsection 34(1) of the Act:
·a thermomix all-in-one kitchen machine (undated quote = $2,269)[7]; and
·a 90-litre car fridge/freezer (quote filed on 29 March 2022 = $1,099)[8]; and
·a 1500W pure sine wave power inverter (quote dated 5 May 2020 = $229)[9]; and
·a garden shed kit with dimensions 3.00 x 1.52 x 2.08 metres (undated quote = $494).[10]
EVIDENCE
[7] Exhibit T-T15L, page 75.
[8] Exhibit A11.
[9] Exhibit T-T15M, page 76.
[10] Exhibit T-T15P, page 77.
The Applicant and her family
The Applicant lives with her parents, Ms ‘A’ and Mr ‘B’, and two of her three older siblings (aged seven and 15 years old) in a small town situated south-west of Sydney. The Applicant also has an older sibling aged 21 years old who does not currently live at the four-bedroom family home.
Each of the Applicant’s siblings has disabilities that require support: her oldest sibling (21 years old) has been diagnosed with severe complex post-traumatic stress disorder; her sibling aged 15 years old has autism level 2; and her sibling who is seven years old has been diagnosed with ‘chronic airflow obstruction, enlarged turbanites, congenital deviated septum’ and ‘hyperactivity/ ADHD [attention deficit hyperactivity disorder]’.[11]
[11] Exhibit T-T14 and Exhibit ST-ST2, page 223.
Ms ‘A’ and Mr ‘B’ have no physical support from extended family members and have their own separate medical issues. Ms ‘A’ withdrew from her university degree study due to health complications during her pregnancy with the Applicant and to subsequently provide care for the Applicant; however, she has expressed a wish to complete this degree.[12] Mr ‘B’ currently holds three jobs to financially support the family, which requires him to spend extended time outside the family home; primarily, he works in the construction industry and secondly, in the wild game harvesting industry.[13]
[12] Exhibit ST-ST2, page 224.
[13] Exhibit A2.
Mr ‘B’’s work harvesting wild game involves extensive travel/driving (12 hours one way) to a farm owned by a family friend. Due to this work, Mr ‘B’ stays at the family home an average of 15 to 20 nights a month and travels an average of 1,800 to 2,000 kilometers each month.[14]
[14] Exhibit ST-ST7, page 414.
Prior to the birth of the Applicant, Ms ‘A’ and Mr ‘B’ travelled to this farm each month with their children to enjoy ‘off grid’ camping as a family; there is no electrical power and they sleep in a tent, take their own water and cook on a fire.[15] Ms ‘A’ described this as their time for ‘family bonding’.[16] However, since the Applicant’s birth and in view of her complex medical needs and care, it has primarily been Mr ‘B’ and the Applicant’s older siblings who have spent time at this farm. Ms ‘A’ stated that she cannot currently take the Applicant to this farm for more than 24 hours as there is no electricity and she has ‘no way of charging her feeding pump, keeping her milk [formula] cold on the drive or her blends [food] frozen’;[17] it is (in part) for this reason that Ms ‘A’ and Mr ‘B’ are requesting a car fridge/freezer and a power inverter for the Applicant.[18] They have trialed Ms ‘A’ and the Applicant staying in a powered cabin in the nearest town, which is 65 kilometers (50 minutes’) drive one way from the farm. This has enabled the family to spend their days together but not allowed the Applicant to enjoy the experience of camping overnight ‘off grid’ with her siblings and parents.
[15] Oral evidence of Ms ‘A’ on 25 March 2022, transcript of proceedings, page 68.
[16] Oral evidence of Ms ‘A’ on 25 March 2022, transcript of proceedings, page 24.
[17] Exhibit ST-ST2, page 225.
[18] Exhibit ST-ST2, page 239.
In a statement describing a day in May 2020 when Mr ‘B’ was away from home, Ms ‘A’ outlined the care and support she provides to the Applicant and her other three children. In addition to washing, cooking and cleaning for the family, this included:
·changing the Applicant’s milk formula pouch every four hours including during the night (a multiple-step process);
·cleaning the Applicant and changing her bedding during the night because her feeding tube extension disconnected;
·changing the Applicant’s nappies;
·practicing physiotherapy and building blocks with the Applicant;
·preparing the Applicant’s formula for a 24 hour period (a multiple-step process taking more than two hours); and
·caring for her other children including overseeing bathing and schooling (two of the older children were home-schooling due to the covid-19 pandemic), and providing support to her oldest child by telephone (who was unable to isolate with the family and was experiencing a difficult period with his mental health).[19]
[19] Exhibit ST-ST2, pages 227-238.
At the Tribunal hearing, Ms ‘A’ confirmed that she continues to provide a similar level of care to the Applicant (and her other children) as she did in May 2020, with the caveat that the Applicant is now mobile and requires continuous 1:1 care and oversight. Ms ‘A’ said she was in the process of implementing the additional support worker hours in the Applicant’s NDIS plan that commenced on 31 January 2022 and observed that this additional care will enable her to spend time with her other children who also require her care and support.
The Applicant’s medical history
The Applicant has experienced significant medical intervention since she was born via an emergency caesarean at 35 weeks. She spent her first week in the special care nursery and during this time, received feeding assistance via a naso-gastric (NG) tube.[20] She was discharged but returned to hospital when she was three weeks old with ‘peripheral lymphedema’ (severe swelling in the feet) and was subsequently diagnosed with Turner syndrome due to a ‘completely deleted second X chromosome: Monosomy X’.[21]
[20] Exhibit ST-ST2, page 219.
[21] Exhibit ST-ST2, page 219.
At four weeks old, the Applicant began passing blood and mucous in her stools. At eight weeks, she commenced medication for severe vomiting and gastroesophageal reflux. She was admitted to hospital at nine and a half weeks old and another NG tube was inserted when she was diagnosed with failure to thrive (malnutrition). After the Applicant was also diagnosed with cow’s milk protein allergy, Ms ‘A’ ceased breastfeeding and the Applicant began an amino acid-based prescription formula; this stopped the bleeding in her stools but not the mucous or her severe vomiting and diarrhoea.
The Applicant had cardiac failure when she was 12 weeks old and underwent emergency cardiac surgery to repair her coarctation of the aorta, a congenital heart defect caused by her Turner syndrome.[22] She remained in hospital for almost six months and during this period, she had numerous medical procedures including surgical insertion of a gastrostomy for feeding, parenteral nutrition (where she was fed through a central venous line directly into artery bypassing her gut) and an upper gastrointestinal endoscopy under anesthetic. Post-discharge from hospital, the Applicant had a gastrojejunostomy surgically inserted for feeding to replace the gastrostomy; as at December 2020, she had undergone nine gastrojejunostomy changes.[23]
[22] Exhibit ST-ST2, page 219.
[23] Exhibit ST-ST2, page 220.
The medical evidence shows the Applicant has multiple complex medical conditions and disabilities, and experiences severe developmental delays due to her diagnosis of Turner syndrome. The following medical and specialist reports filed with the Tribunal are set out in chronological order below and provide some context to the complexity of the Applicant’s medical history and disabilities and, in particular, her long-standing issues with feeding, nutrition and growth:
·A report by Dr ‘C’ (the Applicant’s treating paediatric endocrinologist) dated 7 February 2020 stated the Applicant had ‘poor growth secondary to gut issues [with] no specific diagnosis yet’ and he discussed with her mother a ‘long term management plan for Turners syndrome including GH [growth hormone] therapy’.[24]
[24] Exhibit T-T3, pages 27-28.
·A report by Associate Professor ‘D’ (the Applicant’s treating general paediatrician since her birth) on 27 February 2020 referred to the Applicant having ‘persistent diarrhoea’.[25] In the context of recommending a thermomix to broaden the Applicant’s diet, Associate Professor ‘D’ provided a medical letter dated 27 April 2020 that stated the Applicant is on ‘continuous gastrojejeunal feeds’ and ‘cannot eat anything orally safely’.[26]
[25] Exhibit T-T4, page 29.
[26] Exhibit T-T7, page 36.
·A report by Mr ‘E’ (the Applicant’s treating speech pathologist) on 23 April 2020 stated the Applicant was ‘peg fed for the majority of her dietary intake’ and speech therapy was recommended to support her ‘safe chewing and swallowing as she transitions onto more complex textures’.[27] Mr ‘E’ reported the Applicant’s meals ‘consist of a puree consistency’ and she ‘pockets’ food in the side of her cheeks, which presents a choking hazard.[28]
[27] Exhibit T-T6, page 34
[28] Exhibit T-T6, page 35.
·A Child Developmental Assessment Service (CDAS) report dated 22 July 2020 set out the Applicant’s diagnoses of autism spectrum disorder level 2 (requires substantial support for social communication and restrictive repetitive behaviours), global developmental delay with mild impairment in adaptive functioning and Turner syndrome.
This report also provided a comprehensive list of the Applicant’s other medical issues and surgeries including surgical repair of coarctation of aorta, iron deficiency anaemia, laryngomalacia, valgus deformity at ankle and possible deformities in elbow and shoulder, mild to moderate hearing loss, and persistent diarrhoea with slow weight gain.[29]
[29] Exhibit T-T16, page 81.
Specifically, in relation to feeding, the CDAS report recorded the Applicant is fed elemental formula through a gastrojejunostomy port and observed she:
ohas had ‘difficulties with tolerating feeds and excessive vomiting’ since early infancy;
ocontinues to have issues with ‘ongoing diarrhoea and poor weight gain with ongoing paediatric gastroenterology involvement’;
ois ‘able to take some food orally, and will put preferred foods in her mouth, chewing them and then storing in her cheek rather than swallowing’;
ocan ‘manage some very smooth puree, and will attempt a spoon’ and is able to drink from a sippy cup; and
o‘smells food, toys and grass and can be particular about the type of food she will eat or tolerate on her plate’.[30]
·A report by Ms ‘F’ (physiotherapist) on 30 April 2020 observed the Applicant has made positive progress with her gross motor skills and continues to ‘present with challenges in some of her balance/coordination, motor planning and sensory issues… delays in some of her ball skills, running, balancing, galloping, climbing’.[31]
·A report by Ms ‘G’ (occupational therapist) (undated) outlined recommendations for the Applicant to ‘develop age appropriate self-care skills’.[32]
[30] Exhibit T-T16, pages 84-86.
[31] Exhibit T-T9, page 41.
[32] Exhibit T-T15A, page 71.

In addition to the informal support the Applicant receives from her parents, Ms ‘A’ confirmed that the Applicant continues to engage with the following medical and specialist supports:
·general practitioner, hydrotherapy and supported playgroup each week;
·occupational therapy on an ad hoc basis (this is likely to change in accordance with the Applicant’s NDIS plan that commenced on 31 January 2022);
·speech therapy and physiotherapy every fortnight;
·dietetics every month;
·general paediatrician, surgical/ stoma/ fluoroscopy, and Royal Institute for Deaf and Blind Children every three months;
·endocrinologist, cardiologist, gastroenterologist, and ear, nose throat specialist every six months;
·orthopaedics every year;
·complex care clinical nurse consultant at all Westmead Children’s Hospital appointments; and
·paediatric ambulatory care as required.[33]
[33] Exhibit ST-ST2, pages 243-244.
Except for the Applicant’s general practitioner who is in the town nearest to the family home, attending these appointments involves Ms ‘A’ and the Applicant driving a minimum of 30 to 45 minutes (one way) from the family home in addition to the time of the appointment, and two hours driving (one way) to Westmead Children’s Hospital. Ensuring the Applicant’s milk formula feeds are kept cold and enabling her feeding pump to be charged during these regular and frequent trips to medical/specialist appointments is (in part) the reason for the Applicant’s request for a car fridge/freezer and power inverter.
The Applicant’s NDIS plan
The Applicant’s NDIS plan that commenced on 31 January 2022 included the following relevant short, medium and long-term goals for her:
·short-term goals:
oto ‘become more independent in exploring her environment’;
oto ‘increase her participation in self-care tasks’; and
·medium or long-term goals:
oto ‘have access to support that will allow her to have her personal needs met’.[34]
The Applicant’s requested supports
[34] Exhibit A1.
1. Thermomix
A thermomix has been requested to ‘assist the Applicant to have blended feed’.[35] Evidence in relation to the Applicant’s feeding and the request for a thermomix has been provided by Ms ‘A’, Ms ‘G’, Associate Professor ‘D’, Ms ‘H’ (the Applicant’s dietician) and Ms ‘I’ (a dietician commissioned by the NDIA to undertake an assessment of the Applicant and her requested supports based on available medical reports).
[35] Opening Statement of the Applicant on 25 March 2022, transcript of proceedings, page 8.
At the Tribunal hearing, Ms ‘A’ explained the Applicant’s method of feeding. She said the Applicant receives milk formula via a gastrojejunostomy, which comprises a device or ‘button’ that sits on the outside of her abdomen and goes through her abdominal wall; this device contains a ‘G-port’ that goes into the Applicant’s stomach via a tube and a ‘J-port’ which goes into her jejunum through a tube.[36] The Applicant’s milk formula generally goes into her J-port while medications, water and any blended food goes into the G-port.
[36] Oral evidence of Ms ‘A’ on 25 March 2022, transcript of proceedings, page 17.
To obtain adequate nutrition, the Applicant wears a modified ‘feeding backpack’ that holds sufficient milk formula in a ‘pouch’ for four hours of feeding, an ice brick in an insulated bag to keep the milk formula cold and at a ‘safe’ temperature for four hours, and a feeding pump.[37] A ‘feeding tube’ connects the button (GJ-port) to a ‘giving set’ that is attached to the feeding pump, which regulates the volume and speed the formula is delivered.[38] Currently, the Applicant’s milk formula comprises two separate formulas that are mixed together in a vitamix blender and prepared 24 hours in advance and stored in a refrigerator. The Applicant receives milk formula, which is currently ‘40 mls an hour’, through this method for 20 hours a day.[39]
[37] Oral evidence of Ms ‘A’ on 25 March 2022, transcript of proceedings, page 19.
[38] Oral evidence of Ms ‘A’ on 25 March 2022, transcript of proceedings, page 18.
[39] Oral evidence of Ms ‘A’ on 25 March 2022, transcript of proceedings, page 57.
Ms ‘A’ said the Applicant is presently receiving about 90 per cent of her nutrition via her gastrojejunostomy and 10 per cent by oral intake;[40] oral foods primarily comprise ‘soft’ foods that either ‘easily dissolve in her mouth or are easily chewable’.[41]
[40] Oral evidence of Ms ‘A’ on 25 March 2022, transcript of proceedings, page 28.
[41] Oral evidence of Ms ‘A’ on 25 March 2022, transcript of proceedings, page 17.
Prior to October 2021, the Applicant received all her milk formula via the J-port. However, following a power failure at their home in October 2021, which meant Ms ‘A’ was unable to charge the Applicant’s feeding pump, the Applicant has also received some milk formula via her G-port. Ms ‘A’ noted the ‘end goal’ is to reduce the amount of milk formula going into the Applicant’s ‘J-port down into her jejunum and increase what is going into the [G]-port’ so her body can ‘understand the function of “there’s food in my stomach, I need to process that”’.[42] Ms ‘A’ stated that ‘bolus feeding of a blended feed…[is] the first step in a very long process of getting [the Applicant] to be able to eat at a table with her peers.’[43]
[42] Oral evidence of Ms ‘A’ on 25 March 2022, transcript of proceedings, pages 17-18.
[43] Oral evidence of Ms ‘A’ on 25 March 2022, transcript of proceedings, page 18.
In a written statement dated May 2020 (updated in December 2020) and confirmed in her oral evidence to the Tribunal, Ms ‘A’ identified several complicating factors in relation to the Applicant’s oral feeding. She noted that the Applicant ‘continually gags’ on puree and water, and ‘can mouth a small selection of solid foods but “pockets” solid food in her cheeks’ and this ‘poses a choking hazard and aspiration risk’.[44] Ms ‘A’ also observed that higher oral intake can increase the Applicant’s vomiting and diarrhoea, which leads to unwanted weight loss. In 2020, Ms ‘A’ wrote:
With the support and guidance of [the Applicant’s] Dietician, Paediatrician and Gastroenterologist, we are beginning a new blended tube diet. This consists of me creating balanced, nutritional whole foods, blended to a thin liquid form and syringed directly into [the Applicant’s] Gastrostomy. This is a highly researched feeding treatment in the USA and is gaining fast traction in Australia. All of [the Applicant’s] specialists and therapists are highly supportive of this treatment for [the Applicant]. So far, she is responding brilliantly without increased vomiting or diarrhoea and weight loss. We currently have a Vitamix for [the Applicant’s] blended feeds, however it cannot puree chicken to a liquid form and has blocked [the Applicant’s G port requiring an emergency change under fluoroscopy.[45] [emphasis in original]
[44] Exhibit ST-SR2, page 221.
[45] Exhibit ST-SR2, page 221.
At the hearing, Ms ‘A’ maintained that the goal is to ensure the Applicant receives adequate nutrition and to establish a process to wean her from milk formula to a diet of blended food. Ms ‘A’ acknowledged this is a long-term process that will involve testing and trialing the Applicant’s tolerance of particular foods into her stomach via the G-port and then gradually increasing her oral intake of foods.
She said the benefits of moving to a diet of blended food include providing the Applicant with higher caloric nutrition to assist her to gain weight, enabling her to trial foods to test and understand her intolerances with the aim to reduce her vomiting and diarrhoea, and eventually allowing her to participate in the social aspects of eating food. In addition, Ms ‘A’ explained that blended food can be made and frozen until fed to the Applicant via her G-port, unlike her milk formula that must be discarded if it is not used within 24 hours of being prepared.
Ms ‘A’ explained to the Tribunal that they commenced the process of trialing the Applicant with blended food in 2020 but stopped after the Applicant’s G-port tube became blocked with the food (chicken) and Ms ‘A’ was unable to flush or move the blockage. Ms ‘A’ said the Applicant subsequently underwent an emergency tube change under fluoroscopy in August 2020, which she described as ‘traumatic’.[46] Ms ‘A’ said, with the advice of the Applicant’s dietician, she had trialed the Applicant on a blended feed of cooked chicken and potatoes, oil and formula. In accordance with food safety requirements, she separately cooked the potato and chicken, and then blended all the foods using the vitamix high-powered blender. Ms ‘A’ said that she has also trialed using a ‘stick blender’ but this also ‘does not do what is required’.[47]
[46] Oral evidence of Ms ‘A’ on 25 March 2022, transcript of proceedings, page 20.
[47] Oral evidence of Ms ‘A’ on 25 March 2022, transcript of proceedings, page 46.
Ms ‘A’ said that the process of introducing the Applicant to blended bolus foods has been on hold until she can access a thermomix to ensure the consistency of the blended food is sufficiently smooth that it will not cause a blockage in the Applicant’s G-port tube. Ms ‘A’ provided photographic evidence of blended bolus food prepared by her using usual cooking utensils and a vitamix to blend the food, and the same meal prepared by an occupational therapist, Ms ‘G’, who used a thermomix. These photographs show the thermomix created a significantly smoother blend of the foods to the vitamix blend (this was a thicker and lumpier consistency).[48]
[48] Exhibit ST-ST3, page 279.
On 4 December 2020, Ms ‘G’ completed a NDIS general assistive technology assessment to request a thermomix for the Applicant. Ms ‘G’ stated the Applicant experiences ‘chronic malabsorption’ and identified the following problems to be addressed:
1.    [The Applicant] is feed [sic] continuously and requires a blended diet through the gastrostomy (GJ). [The Applicant’s] diet has been prescribed by a dietician as a result of her disability- the recipes cannot be altered and include proteins which do not break down in a high powered blended blender. There is evidence of the current blended consistency blocking the tube which requires admission to hospital and tube replacement.
2.    Food is currently prepared for [the Applicant] by [Ms ‘A’] and can take up to 4 hours each session of preparation due to not having adequate equipment. This time is extraordinarily longer than other carers or what is reasonable for a mother to complete as a result of her needing to support [the Applicant’s] disability.
3.    Completing the food preparation reduces [Ms ‘A’’s] or [the Applicant’s] carer’s capacity for care for her dependents or complete food desensitisation therapies with [the Applicant] to reduce the need for the tube feeds.[49]
[49] Exhibit ST-ST3, page 277.
Ms ‘G’ proposed a thermomix would address these problems in the following ways:
1.    A thermomix multicooker can grind and blend foods to a safe consistency that can be delivered via the gastrostomy. This solution reduces direct risk to [the Applicant who]… has now had two blockages to her GJ [tube] as a result of the blends being too thick to pass through to tube. When the tube is blocked, [the Applicant] requires emergency admission to the children’s hospital at Westmead and the tube requires changing under fluoroscopy. A thermomix can create a thinner blend which will reduce the risk of blockages in the tube and hospital admissions.
2.    A thermomix multicooker can complete multiple actions of the cooking sequence without an adult e.g. boiling chicken, stirring, blending. This increases [Ms ‘A’’s] or the carer’s capacity for supervision.
3.    A thermomix multicooker would complete the food preparation activity using one piece of equipment rather than several- reducing time spent cleaning.
4.    This solution would reduce time in food preparation and would allow [Ms ‘A’] to spend her time targeting all of [the Applicant’s] other NDIS goals and increasing her independence and capacity in all areas of development.[50]
[50] Exhibit ST-ST3, pages 277-278.
Support for purchasing a thermomix to make blended food for the Applicant has also been provided by Associate Professor ‘D’ and Ms ‘H’.
Associate Professor ‘D’ wrote reports dated 27 April 2020, 3 December 2020, 3 April 2021, 26 July 2021 and 15 October 2021, and provided oral evidence at the hearing on 28 March 2022.
Associate Professor ‘D’ reported on 26 July 2021 that the Applicant’s swallowing remained ‘unsafe’, and her nutrition will need to be given via enteral tube ‘for the foreseeable future’ and she will not be ‘fully orally fed for some years’.[51] He further opined:
[The Applicant’s] nutrition, weight gain and feeding needs are being managed at present however she will require to be switched to a bolus blended diet with time and for this the family will need a thermomix. The use of a commercial blended diet to meet the caloric requirements set out by dietician [Ms ‘H’] has been quoted at $9,100 per year. Therefore a single payment for a thermomix that her mother can use at home to provide her dietary requirements is the most cost effective option and supported by myself, OT [occupational therapist], dietician and speech therapist.[52]
[51] Exhibit ST-ST9, page 421.
[52] Exhibit ST-ST9, page 421.
At the Tribunal hearing, Professor ‘D’ said the Applicant has ‘complex gut problems’ and is on an ‘individualised diet’ managed by her dietician, Ms ‘H’.[53] He particularly noted that Ms ‘H’ has the required expertise and the Applicant’s disabilities/ treatment are ‘beyond the expertise of most dieticians’.[54] He explained they have ‘never really got a very good handle’ on the Applicant’s ‘gut problem’ except that she has ‘disordered gut motility’ and ‘literally cannot tolerate any other form of nutrition other than jejunostomy feeds’.[55]
[53] Oral evidence of Associate Professor ‘D’ on 28 March 2022, transcript of proceedings, page 114.
[54] Oral evidence of Associate Professor ‘D’ on 28 March 2022, transcript of proceedings, page 114.
[55] Oral evidence of Associate Professor ‘D’ on 28 March 2022, transcript of proceedings, page 114.
In relation to the Applicant’s medical conditions and her disabilities, Associate Professor ‘D’ relevantly commented:
I’ve been doing paediatrics for 30 years, 40 years, and [the Applicant is] one of the most complex patients that I’ve got and so rules that apply to other children don’t necessarily apply to [the Applicant]. Her swallowing is unsafe. She’s had heart surgery. And the gut,… you know, it’s a most unusual case, and so we’re really stuck with doing what works, which with her is the continuous feeds on the feed that she’s on with the dietician. It’s literally the only option that we’ve got. We don’t have a simpler option than what we’ve got at the moment.[56]
[56] Oral evidence of Associate Professor ‘D’ on 28 March 2022, transcript of proceedings, page 116.
Associate Professor ‘D’ opined that a thermomix is required so the blended food has the ‘consistency that the pump will send [the food] through the narrow tube correctly’; he noted the vitamix does not ‘create a suitable consistency’ of blended food and, if the consistency is ‘too thick it clogs up [the tube], and if it’s too thin it gets aspirated’.[57]
[57] Oral evidence of Associate Professor ‘D’ on 28 March 2022, transcript of proceedings, page 118.
Ms ‘H’ has been the Applicant’s treating dietician since 2019. She provided written reports dated 7 May 2020, 5 March 2021, 15 October 2021 and 18 February 2022, and gave oral evidence to the Tribunal on 28 March 2022.
In a report dated 7 May 2020, Ms ‘H’ explained the Applicant’s feeding process and the reasons for requesting a thermomix:
[The Applicant] is currently reliant on a highly specialised formula for jejunal feeds and additionally now receives blended food via a gastrostomy with the goal of continuing to build this up and reduce reliance on formula. This has improved her bowel function and she is currently tolerating small amounts well. Due to [the Applicant’s] diagnosed (and additional undiagnosed) food intolerances she cannot simply be given blended family foods. Use of a thermomix would allow specific food to be cooked and blended with minimal effort and with significantly less time burden on [Ms ‘A’], who takes care of 4 children alone much of the week.[58] [emphasis added]
[58] Exhibit T-T11, page 49.
On 5 March 2021, Ms ‘H’ reported on the process of the Applicant’s enteral feeding and the trial of bolus blended food via her G-port. She wrote:
There is emerging evidence that for some children who are enterally (tube) fed the provision of blended food via gastrostomy results in better oral feeding tolerance, reduction in problematic GIT [gastrointestinal] symptoms and reduced reliance on formula. Anecdotally this is something I have seen in practice and there is active research being conducted in Australian children’s hospitals with blended feeds already being recommended in children with particular disabilities. Although as previously mentioned, it is not the recommended first line practice, it is also common practice internationally, particularly in the USA & UK. The UK now has a position statement that supports this (attached).
[The Applicant] has had success tolerating some early attempts with blended feeds via gastrostomy, after these were trialled with the approval of her Paediatric teams. However, her current high speed blender has not been able to achieve the smoothness of consistency that is required to successfully pass through her gastrostomy tube without blockage. Please refer to the photos provided in the AT report submitted by OT [Ms ‘G’] previously.
While the current high speed blender is efficient at blending [the Applicant’s] specialised liquid formula recipe, it has not been effective in providing a safe and consistent means of blended food via PEG. A thermomix has been trialled and has been successful in achieving the consistency required for PEG feeds. It is one of few that are able to do this and is used by many families who prepare blended feeds. Its additional cooking function would also allow the specifically recommended foods that [the Applicant’s] gut can tolerate (but she is currently unable to eat due to her oral aversion) to be prepared separately with minimal time and reduce any further burden upon her family, in just one aspect of [the Applicant’s] life.
It is very clear to me that [the Applicant’s] family already provide very substantial support to [the Applicant] in relation to many aspects of her life, but particularly feeding. Although this is to be expected of parents of a 3 year old, [the Applicant’s] parents support of [her] meal/formula preparation and feeding is at the highest level I have seen in my 25 years as a clinical dietitian. They do not simply prepare meals as they currently already do for [the Applicant’s] 3 siblings.
Additionally [the Applicant’s] parents:
(a) Prepare specialised formula for, and feed [the Applicant] for 18 hours per day via her stoma. As she is fed into her jejunum she is unable to tolerate more than a very low rate of feed, hence the need to run feeds for this length. With her requiring this they have had to teach [the Applicant] to wear her backpack for the entire time she is awake so that she can receive all of her feeds consistently. This is a huge accomplishment with an active toddler, more so with a toddler that has [the Applicant’s] disabilities.
(b) Set up and manage the feeding, feeding equipment and logistics required with a very mobile child who has no understanding of danger and consequences of her actions - thus needs constant monitoring - and is reliant on this equipment in order to remain hydrated, nourished and ultimately, survive. This monitoring is required in both [the Applicant’s] awake and sleep times. She has recently become prone to climbing out of bed while her formula is still running. This has resulted in [Ms ‘A’] needing to be extremely vigilant both day and night.
(c) Provide daily care of [the Applicant’s] G-J tube to ensure it does not get infected and that feed is delivered in a sterile environment. Again, a huge challenge with an active small child.
(d) Patiently provide multiple daily, social oral eating opportunities that are positive and supportive of [the Applicant], in an effort to reduce her oral aversion and sensory sensitivity, regardless of her capacity to consume a significant quantity on any given day.
(e) Research, plan, prepare and implement blended gastrostomy feeds in an effort to improve her tolerance to feeding, interest in eating, build feeding skills, quality of life and in the longer term aim to reduce her reliance on the formula, equipment and NDIS system that currently supports her / them.
(f) Spend significant amounts of time monitoring [the Applicant’s] response to feeds and food to troubleshoot potential causes of worsening diarrhoea & pain. [Ms ‘A’] in turn communicates this to me to help determine the nutritional course of action.
While the thermomix is a costly item, there are no other suitable alternatives that perform the same functions, to the same standard and effectiveness, with the level of convenience and potential reduction in parent burden that it offers… Funding the thermomix would be a one-off lifetime cost and there are significant potential benefits to be had for [the Applicant’s] functional capacity directly in relation to her feeding, as a result of this being funded. It would offer [the Applicant] the greatest chance of building her oral feeding skills AND improving her overall feeding tolerance in the long term... And because of its ability to prepare, cook and blend ingredients with minimal time and effort, it would reduce the additional time and complexity associated with feeding her via gastrostomy, on top of the already very significant demands imposed on [Ms ‘A’ and Mr ‘B’] in feeding [the Applicant] via her j-tube and orally, that they already manage to the highest of standards. It would provide a relative reduction in parent burden, give them more available time to spend with [the Applicant] on her developmental needs and care, providing the opportunity for further supporting [the Applicant] in building her functional capacity in all ways, in relation to her disabilities.[59] [emphasis added]
[59] Exhibit ST-ST4, pages 331-333.

In January 2022, the Respondent commissioned Ms ‘I’ to assess the Applicant’s feeding and requested supports. Ms ‘I’ produced a written report dated 2 February 2022 based on her understanding of the medical reports and gave oral evidence at the Tribunal hearing on 29 March 2022.
In her report and oral evidence at the hearing, Ms ‘I’ identified three options or methods to blend bolus food in accordance with food safety requirements that could then be fed into the Applicant’s G-port tube. First, she stated a hand-held mouli could be used to blend already cooked foods. She noted moulis can be purchased in various sizes depending on the amount of food that needs to be blended. Second, Ms ‘I’ said a high-powered blender, such as a vitamix, could be used to blend already cooked foods. Third, Ms ‘I’ said a thermomix could be used to weigh, cook and blend foods. Ms ‘I’ opined that either a mouli or a high-powered blender, which are less expensive, would be suitable for Ms ‘A’ to blend food to a consistency that can be inserted into the Applicant’s G-port.
Ms ‘I’ did not examine the Applicant or speak with Ms ‘H’ prior to writing her report. It subsequently became apparent – both in the written report by Ms ‘H’ on 18 February 2022 (see below) and in Ms ‘I’’s oral evidence to the Tribunal – that Ms ‘I’ did not have a correct and complete understanding of the Applicant’s feeding situation when she wrote her report. In particular, Ms ‘I’’s assessment and report appears to have been based on the following incorrect facts: the request for a thermomix was to blend pureed food for the Applicant’s oral consumption; the intention was to insert pureed food into the Applicant’s J-port tube not the G-port; the Applicant’s current milk formula blend could be pre-made and frozen; the Applicant would be able to consume a blend of the meals Ms ‘A’ cooks for the family and freezes; and the Applicant could tolerate commercially prepared pouches of pureed food that do not require refrigeration via her J-port or G-port.
Ms ‘H’ refuted Ms ‘I’’s understanding of the Applicant’s feeding situation in a written report dated 18 February 2022. Consistent with the oral evidence of Ms ‘A’, Ms ‘H wrote:
[The Applicant] has a gastro-jejunostomy (PEG-J) feeding tube. This type of feeding tube has two (2) separate feeding ports. One port (G-port) allows for delivery of feed, water or medication into the stomach. The other port (J-port) allows for delivery of feed, water or medication into the jejunum (small intestine).
[The Applicant] has historically received feed via her J-port since the PEG-J was placed in 2018.
Feeding via [the Applicant’s] G-port has also been trialled at periodic intervals, to assess for any evolving gastric (stomach) tolerance as she has gotten older, with gradually increasing success, most recently at the end of October 2021.
Currently [the Applicant] can tolerate 60-65% of her nutritional requirements via PEG (as formula) before she experiences adverse effects.
[The Applicant] also consumes food orally, including a range of food textures. She rejects pureed food. The quantity of her oral food intake is extremely variable, of limited variety and is insufficient to meet her nutritional requirements.
…
[The Applicant] has experienced successes with tolerating blended food given via G-port bolus. The main limitations were the smoothness of the blend achieved and the types of food [the Applicant] could be given without creating undue carer burden, given her food sensitivities.
Most recently [the Applicant] has tolerated ~ 60% of her requirements via G-port using a feeding pump. This has been as a result of 1. her carers’ persistence in both retrialing G-port feeding periodically, and 2. necessity, after a recent loss of power at home where [the Applicant’s] feeding pump failed and she temporarily required bolus feeds which could only be given via G-port.
As per my reports dated 7th March 2020 & 5th March 2021, and reiterated, [the Applicant] eats small amounts orally, on most days.
The optimal mode of feeding [the Applicant], to meet her nutritional requirements is currently therefore an evolving combination of PEG-J and oral feeding.
It should be noted that even when [the Applicant] receives her feed via J-port she still has difficulty tolerating feed at the optimal rate / volume as evidenced by her slow weight gain. There is unfortunately no simple solution to feeding her.[60] [emphasis in original]
[60] Exhibit A3, pages 1 and 3.
In relation to other matters set out in Ms ‘I’’s report, Ms ‘H’ clarified the thermomix would be used to make blended bolus food that could be fed to the Applicant via her G-port tube, not to make food to be consumed orally by the Applicant. Ms ‘H’ also provided written advice from the manufacturers of the Applicant’s current formulas that these milk formulas cannot be frozen after they have been prepared.
At the Tribunal hearing, Ms ‘H’ provided extensive information about the Applicant’s feeding and growth, noting that progress has reflected ‘little improvements but then regressions’.[61] She described the complex history of the Applicant’s gut and significant food intolerances that have led to life-long vomiting and diarrhoea, and explained the Applicant could not consume a blend of the family meals cooked by Ms ‘A’ or commercially prepared pureed food. Ms ‘H’ said the Applicant has a history of ‘severe oral aversion’ and when she first met the Applicant in 2019:
She would vomit potentially at the sight of food, or if anything got in her face, because she had so much trauma associated with things going around her face and with food and the connection between food and her symptoms in her gut. So it was very, very slow progress very early on. But that has improved, but she still to date, so we’re talking… two‑and‑a‑half years later, we can’t rely on her oral intake to give her a certain amount of calories and a certain amount of nourishment every day to allow her to move away from tube feeds.[62]
[61] Oral evidence of Ms ‘H’ on 28 May 2022, transcript of proceedings, page 91.
[62] Oral evidence of Ms ‘H’ on 28 May 2022, transcript of proceedings page 88.
Ms ‘H’ also explained her recommendation for a thermomix as follows:
[W]hen it comes to blended feeds… the Australasian Society of Parental and Enteral Nutrition consensus statement and the British Dietetic Association practice toolkit for blended tube feeds recommend the use of a high powered blender for creating blended tube feeds… Thermomix is one of those that falls into that category. But, the specific additional benefit of a thermomix is what they call an all-in-one kitchen machine. So, it also is able to weigh and cook food and blend it… it’s able to do all of the functions of…multiple pieces of kitchen equipment and so it minimises the number of steps required in feeding [the Applicant].
So, [the Applicant’s] already complicated, she’s already got several things going on in terms of her feeding, we’ve got the oral feeding, we’ve got the gastrostomy feeding, we’ve got the jejunostomy feeding and the management that goes around taking care of feeding a child like that. So, the advantage of a thermomix was to minimise more burden on the family for preparation and safe preparation of her foods… The fact that it’s a high powered blender means that it’s going to produce the smoothest consistency of blend. So, it’s going to reduce the risk of the tube blocking. It’s going to allow her food – we can’t just use her family food… – to be prepared in bulk much like her formula currently gets prepared in bulk. It’s also got the potential for reducing the risk of contamination, which is something that has been brought up in terms of the concerns around blended feeding because the multiple steps involved in preparing food are minimised by using one piece of equipment so you’re not having to…move food from one place to another, expose it to more air, it’s all there in the one [place].
…
[I]n terms of preparation, it has the potential to minimise the food handling aspect once the food is being prepared. And the other reason that I felt that it was appropriate to recommend the thermomix for [the Applicant] was that because she has this history of the cow’s milk protein intolerance, and to date appears to have other food intolerances that we’re not able to pinpoint or test for, it gives the opportunity of being able to manipulate that food that we’re giving her very easily. So, we can say, “Okay, we want this ingredient and that ingredient”. We can’t just pick up the family meal and blend that up. We can tailor her blends to what is most likely for her to be tolerated.[63] [emphasis added]
[63] Oral evidence of Ms ‘H’ on 28 May 2022, transcript of proceedings page 93.
Ms ‘H’ said she has had a number of children that have ‘gone from being completely formula fed or not tolerating formula at all, even specialised formulas, who have gone on to do really well with blended feeds’.[64] She provided copies of the following reports to support her opinion: Practice Toolkit: The Use of Blended Diet with Enteral Feeding Tubes[65]; Blended tube feeding in enteral feeding: Consensus Statement[66]; and Getting Started with Blended Tube Feeds.[67] She accepted that these reports recommend using a ‘high powered blender > 1000watts’ to make blended bolus food, but do not specifically require or recommend a thermomix.[68]
[64] Oral evidence of Ms ‘H’ on 28 May 2022, transcript of proceedings, page 95.
[65] Exhibit A6 – The Association of UK Dietitians, Practice Toolkit: The Use of Blended Diet with Enteral Feeding Tubes (November 2021).
[66] Exhibit A7 – Australian Society of Parenteral and Enteral Nutrition, Blended tube feeding in enteral feeding: Consensus Statement (July 2021).
[67] Exhibit A10 – Australian Society of Parenteral and Enteral Nutrition, Getting Started with Blended Tube Feeds (undated).
[68] Exhibit A10, page 2; oral evidence of Ms ‘H’ on 28 May 2022, transcript of proceedings, page 102.
At the hearing, Ms ‘H’ also provided evidence about the financial benefit of the Applicant reducing her reliance on formula and increasing her diet of blended food; she stated that, as the Applicant’s formula is prescription, it is subsidised by the pharmaceutical benefits scheme.[69]
[69] Oral evidence of Ms ‘H’ on 28 May 2022, transcript of proceedings, page 133.
Finally, the Applicant filed a ‘Choice’ review and comparison of ‘all-in-one kitchen machines’ priced between $350 and $3,295: this review rated thermomix first overall out of 11 machines, and first in terms of both ‘cooking performance’ and ‘ease of use’.[70]
[70] Exhibit A13.
2. Car fridge/freezer
A car fridge/freezer has been requested to store the Applicant’s prepared milk formula when she is away from her home fridge or electrical power.[71] Evidence about the Applicant’s need for a car fridge/freezer has been provided by Ms ‘A’ and Mr ‘B’, Ms ‘G’, Associate Professor ‘D’, Ms ‘H’ and Ms ‘I’.
[71] Opening Statement of the Applicant on 25 March 2022, transcript of proceedings, page 8.
Ms ‘A’ provided oral evidence to the Tribunal about the reason the Applicant required a car fridge/freezer. Ms ‘A’ said she and the Applicant drive to medical appointments and the ‘fridge component’ of the car fridge/freezer would be used to store the Applicant’s spare pouches of milk formula, which are replaced every four hours, at a safe temperature. Ms ‘A’ said she would also use the car fridge to store 60 ml syringes that have ‘20 centimetres of plunge’ with sterile water and which are used to flush the Applicant’s G-port ‘every four hours…as a safety against [tube] blockages’.[72]
[72] Oral evidence of Ms ‘A’ on 25 March 2022, transcript of proceedings, page 60.
Ms ‘A’ stated that a car fridge/freezer would also support the Applicant to go off-grid camping with her family at their friend’s farm. Ms ‘A’ explained that the ‘freezer component’ of the car fridge/freezer would enable the ice bricks, which go in the Applicant’s feeding backpack to keep her milk formula at a safe temperature, to be refrozen. She said the freezer component could also be used to store frozen blended bolus feeds for the Applicant when this process commences. Ms ‘A’ said she would also ‘take a week’s worth’ of syringes (that is, approximately 42) if they went camping and these would be stored in the car fridge.[73]
[73] Oral evidence of Ms ‘A’ on 25 March 2022, transcript of proceedings, page 60.
At the hearing, Ms ‘A’ and Mr ‘B’ acknowledged that they have used eskies and iceboxes over many years of off-grid camping, and they have a car fridge that Mr ‘B’ uses for camping when he undertakes work in the wild game harvesting industry. However, Ms ‘A’ opined that a car fridge without a freezer component would not support the Applicant to go off-grid camping as she would not be able to refreeze the Applicant’s ice bricks or store frozen blended bolus feeds. Ms ‘A’ and Mr ‘B’ both told the Tribunal that, in their experience, neither an esky nor an icebox would keep the Applicant’s milk formula at a guaranteed safe temperature or enable the Applicant’s ice bricks to be refrozen.
In a written statement dated 18 March 2022, Mr ‘B’ explained the difference between an esky and a car fridge/freezer as follows:
You cannot keep anything frozen in an esky. For an esky/ice retention box you need to repeatedly buy ice and it still will not freeze anything.
We have had two ice retention boxes both claiming to keep ice frozen for 10 days, they don’t last 10 days and they still do not freeze ice bricks or food.
Eskys/Ice retention boxes do not regulate temperature allowing safe food storage.[74] [emphasis in original]
[74] Exhibit A2: written statement amended in oral evidence on 25 March 2022, transcript of proceedings, page 77.
He also explained the operation of the car fridge/freezer (and power inverter) at the Tribunal hearing:
The [car] fridge/freezer runs off the vehicle through its batteries. A vehicle has two batteries, one being charged via the engine consistently and the secondary battery is run by the engine through another module, or can be run through a solar panel, which is pretty much volt-less. The inverter is connected to the second battery, so we will always have power, whether it be from the vehicle or from solar, and it’s a Pure Sine inverter, which is what any medical device, computer laptop needs to be able to run properly just because of the way power is sent through it.[75]
[75] Oral evidence of Mr ‘B’ on 25 March 2022, transcript of proceedings, page 66.
Ms ‘G’, Associate Professor ‘D’ and Ms ‘H’ also provided written support for a car fridge/freezer for the Applicant.
On 1 December 2020, Ms ‘G’ completed an occupational therapy assessment report in which she stated a car fridge was required:
…to keep [the Applicant’s] blended diet at a safe temperature when accessing doctors and therapies – note the family live in a rural area and do not have local access to early intervention supports or tertiary specialists (Sydney based). The absence of refrigeration places [the Applicant] at risk of illness from spoiled meat oral intake. People typically do not require access to refrigeration in daily life as they do not spend hours travelling to and from specialists/ therapies and require continual feeding via a tube.[76]
[76] Exhibit ST-ST3, page 288.
In written reports and oral evidence to the Tribunal, both Associate Professor ‘D’ and Ms ‘H’ also noted the requirement for the Applicant’s milk formula to be kept at a safe temperature during periods when she and Ms ‘A’ travelled to medical appointments.
On 26 July 2021, Associate Professor ‘D’ wrote that the Applicant requires access to a car fridge/freezer and a power inverter when visiting the farm:
…because her feeds need to be given continuously and stored refrigerated. Without the power inverter and car fridge, [the Applicant] cannot join her family on their routine travels. The power inverter and car fridge being requested are the most cost effective and supported by myself, speech therapist, OT and dietician to support her dietary needs when accompanying her family.[77]
[77] Exhibit ST-ST9, page 420.
In response to questions from the Respondent’s counsel that it was ‘high risk’ for the Applicant to go off-grid camping where she did not have access to electricity, both Ms ‘H’ and Associate Professor ‘D’ responded that off-grid camping was an activity ordinarily undertaken by the Applicant’s family and the Applicant would be able to participate except for her feeding requirements due to her disabilities. Associate Professor ‘D’ opined Ms ‘A’ and Mr ‘B’ undertook ‘careful risk management’ when considering camping with the Applicant away from electrical power.[78] He also stated that:
…if the disability is remediable with modern technology, [meaning the car fridge/freezer and power inverter], which is basically what this is about, she deserves the access to the technology to allow the family to live as a family with their child’s disability.[79]
[78] Oral evidence of Associate Professor ‘D’ on 28 March 2022, transcript of proceedings, page 124.
[79] Oral evidence of Associate Professor ‘D’ on 28 March 2022, transcript of proceedings, page 125.
Relying on the report of Ms ‘I’ and research by counsel, the Respondent submitted to Ms ‘A’ and Mr ‘B’ that alternatives to the requested 90-litre car fridge/freezer included a 12-litre thermo cooler-warmer (quote = $129.99)[80], a 35-litre emergency vaccine esky (quote = $269.50)[81] or a 22-litre icebox advertising it kept ice frozen for ‘up to 10 days’ (no price provided).[82]
[80] Exhibit R2.
[81] Exhibit R3.
[82] Exhibit R1, page 7.
When the Respondent’s counsel put to Ms ‘A’ at the hearing that any of these alternatives to a car fridge/freezer were suitable for keeping the Applicant’s milk formula cold, Ms ‘A’ responded that although the 90-litre car fridge/freezer was a bigger size than the Applicant required, it was the best value for money that she had found in her research. She referred to quotes for six alternative car fridge/freezers sized between 60 and 80 litres, which were all more expensive than the 90-litre car fridge/freezer she requested.[83] Ms ‘A’ was also unsure whether the size of the 12-litre thermo cooler-warmer suggested by the Respondent’s counsel would meet the Applicant’s requirements to store her milk formula and syringes of sterile water. Mr ‘B’ said an esky or an icebox that used ice would not keep the Applicant’s milk formula sufficiently cold for any extended period: he explained that he had used many types of eskys and iceboxes when camping off-grid and harvesting wildlife, and these did not keep ice frozen for more than two to three days. Both Ms ‘A’ and Mr ‘B’ reiterated that an esky or icebox would not be able to refreeze the ice bricks the Applicant uses to keep her milk formula cool in her feeding backpack.
[83] Exhibit ST-ST3, page 304.
Ms ‘I’ also gave evidence at the Tribunal hearing about the Applicant’s need for a car fridge/freezer. She opined that an icebox with a thermometer would be suitable for the Applicant’s needs, although her experience using an esky or icebox was limited to camping ‘quite a number of years ago’.[84]
[84] Oral evidence of Ms ‘I’ on 29 March 2022, transcript of proceedings, page 162.
3. Power inverter
A 1500W pure sine wave power inverter has been requested to charge the battery of the Applicant’s feeding pump when electrical power is not available.[85] Evidence regarding this support has been provided by Ms ‘A’ and Mr ‘B’, Ms ‘G’, Ms ‘H’, Associate Professor ‘D’ and Ms ‘I’.
[85] Opening Statement of the Applicant on 25 March 2022, transcript of proceedings, page 8.
At the Tribunal hearing, Ms ‘A’ explained the Applicant is currently fed via her feeding pump for 20 hours per day and the battery mechanism for the feeding pump is usually charged via electrical power while she sleeps. She said the feeding pump and single battery is provided by the company that makes the milk formula.

Ms ‘A’ said that a power inverter would enable her to charge the battery for the Applicant’s feeding pump when they are driving in the car, for example, on the way to and from medical or specialist appointments. Ms ‘A’ gave examples of times she has had issues with charging the Applicant’s feeding pump by electrical mains: she said they experience frequent power outages where they live and explained the feeding pump can ‘drain the battery system’ if it is ‘not handled a specific way’.[86] She further acknowledged that she is ‘a very busy mum’ and sometimes forgets to connect the Applicant’s pump for charging overnight.[87] Ms ‘A’ also said that a power inverter would support the Applicant to go off-grid camping as her feeding pump would be able to be charged from the car battery via the power inverter.
[86] Oral evidence of Ms ‘A’ on 25 March 2022, transcript of proceedings, pages 23-24.
[87] Oral evidence of Ms ‘A’ on 25 March 2022, transcript of proceedings, page 24.
Ms ‘A’ said:
…having the power inverter for all of those scenarios would mean that [the Applicant’s] feeding pump can be charged within our car. Whether that be on the way to an appointment, coming back from an appointment, or in the middle of a power outage, there are many different scenarios why sometimes we need to charge her pump while she’s awake, and a lot of the time that can avoid having [the Applicant] attached to a wall [electrical power point] as she needs to be fed at the same time.[88]
[88] Oral evidence of Ms ‘A’ on 25 March 2022, transcript of proceedings, page 24.
A power inverter is supported in the evidence of Ms ‘G’, Associate Professor ‘D’ and Ms ‘H’.
Ms ‘G’, in her occupational therapy assessment report dated 1 December 2020, wrote that the Applicant requires a car power inverter to ‘have access to power for charging her feeding pump’ and noted that if her ‘giving set is dislodged, the battery will be drained and will require emergency charging’.[89]
[89] Exhibit ST-ST3, page 287.
In oral evidence to the Tribunal, both Associate Professor ‘D’ and Ms ‘H’ opined that a car fridge/freezer and power inverter would support the Applicant to go off-grid camping with her family.[90]
[90] Oral evidence of Associate Professor ‘D’ on 28 March 2022, transcript of proceedings, page 122; oral evidence of Ms ‘H’ on 28 March 2022, transcript of proceedings, page 106.
Ms ‘I’, in her oral evidence to the Tribunal on 29 March 2022, accepted that the Applicant requires a ‘back-up’ if her feeding pump battery cannot be charged due to a power outage.[91] However, rather than a power inverter, Ms ‘I’ proposed a manual system in which the Applicant could be ‘gravity fed’ milk formula through her J-port by situating the pouch containing the milk formula at a height above the Applicant’s head. In cross-examination, Ms ‘I’ suggested that a ‘pole’ could be attached to the Applicant’s feeding backpack to hold the milk pouch above her head height if she required to be gravity fed.[92]
[91] Oral evidence of Ms ‘I’ on 29 March 2022, transcript of proceedings, page 159.
[92] Oral evidence of Ms ‘I’ on 29 March 2022, transcript of proceedings, page 157.
Neither Ms ‘I’ nor the Respondent provided any written information about the mechanism of gravity feeding such as how it operates, or the cost of any device or ‘pole’ compared to the quoted cost of a power inverter.
4. Garden shed kit
The Applicant’s parents have requested a garden shed kit (3.00 x 1.52 x 2.08 metres space saver double door) to store the Applicant’s therapy equipment.[93]
[93] Opening Statement of the Applicant on 25 March 2022, transcript of proceedings, page 8. Exhibit T-T15P, page 77.
In a written statement dated 18 March 2022, Mr ‘B’ explained that, as a builder, he is able to erect a ‘flat pack’ garden shed kit and he would ‘supply and lay the concrete flooring then erect the shed and waterproof with silicone to stop rain entering’.[94] He stated they would then be able to move the Applicant’s ‘foam exercise equipment from inside [their] home’ and the Applicant’s ‘disability bike and bike trailer’ from his work shed.[95]
[94] Exhibit A2.
[95] Exhibit A2.
Ms ‘A’ provided a list of the Applicant’s ‘disability specific equipment’ that is currently stored in the lounge room, dining room, kitchen and pantry, four bedrooms, home office and the outside deck of their family home. At the Tribunal hearing, she confirmed the following equipment could be stored in a garden shed, which would free up space inside their home:
·six-piece foam equipment;
·two crash mats;
·exercise trampoline with balance handle;
·foam roller;
·four x foam stepping stones;
·five x foam balance pieces;
·supported seat outdoor base;
·four-piece foam set;
·plastic balance beam;
·supported tricycle;
·climbing frame; and
·60-litre plastic containers (containing puzzles, games, building blocks etc).[96]
[96] Exhibit ST-ST4, pages 395-396; oral evidence of Ms ‘A’, transcript of proceedings, page 27.
In her oral evidence, Ms ‘A’ outlined the Applicant’s feeding equipment that is kept in the kitchen and/or needs to be stored inside. However, she said that having a garden shed would enable the larger equipment the Applicant uses for physical therapy to be moved from the house (particularly, the four bedrooms, lounge and outside deck) into the garden shed when the equipment is not being used. She stated the Applicant:
…requires a lot of support and part of that support is a lot of equipment. There is equipment bursting out of our house in terms of therapy supports, feeding equipment. We have boxes stacked in our lounge room. We have equipment in all of the children’s [bed]rooms. So, the frustration of the amount of equipment that we do have, which is all needed, it is all used, there is nothing that sits in our house that sits there for no reason. It is all used by [the Applicant] for various reasons, at various times. Having that garden shed would allow these larger therapy equipment items to be able to be stored outside but safely from the weather.
[W]e have a beautiful deck out the back of our house but due to mould, due to rain …we are either constantly cleaning mould off equipment, or…it’s weather damaged. …[B]eing able to store all of that equipment, all of the therapy equipment safely into a garden shed that we know will keep it weather protected, then frees up space within our own home to store her food requirements safely.[97]
[97] Oral evidence of Ms ‘A’ on 25 March 2022, transcript of proceedings, pages 26-27.
In response to questions from the Respondent’s counsel that the Applicant’s equipment was no different to the play equipment that all parents purchase for their children, both Ms ‘A’ and Mr ‘B’ disagreed. This difference of opinion is shown by the following exchange between the Respondent’s counsel and Ms ‘A’:
Respondent’s counsel: …you agree that it’s reasonable for a family, or parents, to provide play equipment for their children and store it?
Ms ‘A’: Play equipment, yes… [W]hat we are asking to store is not play equipment, it is therapy-based equipment for [the Applicant] to learn how to climb the stairs at the back of our house, for [the Applicant] to build strength to be able to play with her siblings.
Respondent’s counsel: The issue, Ms [‘A’], is really about the size of your accommodation, isn’t it?
Ms ‘A’: Sorry, what do you mean by that? Obviously, I know what you mean, like size of our accommodation, I don’t understand how the equipment that we need to store for our daughter.
Respondent’s counsel: It’s a function of how large the house that you choose to live in, isn’t it? It’s a storage question, is what I am saying?
Ms ‘A’: No, we don’t have the storage that is needed to store her equipment. No, we don’t have the storage space.
Respondent’s counsel: It’s a function of the size of your home?
Ms ‘A’: Yes.
Respondent’s counsel: And do you accept it’s not the Agency’s role to fund storage arrangements for households?
Ms ‘A’: No, I don’t accept that. Because I am not asking the Agency to fund anything for any of my other children, I am solely asking for [the Applicant’s] therapy equipment to be stored.
Respondent’s counsel: Okay. Is there any reason why the equipment can’t be stored inside the house and your other children’s equipment stored outside on the deck?
Ms ‘A’: Their stuff is stored within the house, and the minimal toys that they do have, that need to be out of the weather, are stored in a small section of our deck that is out of the way, they are not big and bulky in the same way that [the Applicant’s] therapy equipment is.
Respondent’s counsel: And do you agree that if a family’s household arrangements don’t provide enough storage for their needs, it’s reasonable for a family to deal with that by purchasing a garden shed?
Ms ‘A’: Again, if it wasn’t disability related, then yes, I do agree with that. However, everything that we are asking to store is specifically disability related to [the Applicant] and her needs.[98]
[98] Oral evidence of Ms ‘A’ on 25 March 2022, transcript of proceedings, page 37.
Mr ‘B’ also gave oral evidence about the Applicant’s equipment and said these items were not ‘just ordinary toys’ that the Applicant played with.[99] He gave the example of the Applicant’s trike and said:
…her trike compared to her seven-year-old brother’s bike is very different. The trike is like massively wide and modified to suit her, support her body [with] straps and handles, and the way that the pedals are set up. It probably takes up the equivalent of three BMX bikes.[100]
[99] Oral evidence of Mr ‘B’ on 25 March 2022, transcript of proceedings, page 72.
[100] Oral evidence of Mr ‘B’ on 25 March 2022, transcript of proceedings, pages 72-73.
FINDINGS OF FACT
Based on the evidence, I make the following findings of fact:
The Applicant’s medical conditions and disabilities
·The Applicant has experienced multiple complex medical conditions and been diagnosed with disabilities including autism spectrum disorder level 2, global developmental delay with mild impairment in adaptive functioning and Turner Syndrome. Since birth, she has had complicated gut issues that causes her excessive vomiting, persistent diarrhea, and poor weight gain and growth.
The Applicant’s activities and requested supports
·The Applicant attends medical and specialist appointments several times a week, which require her to be away from home for a period between four and six hours (includes time for travel/driving and appointment/s).
·The Applicant seeks to accompany her family on off-grid camping trips for up to a week. At the present time, the Applicant cannot participate in these family activities because:
oshe does not have access to a car fridge/freezer that can keep her formula at a safe cold temperature, refreeze ice bricks and store syringes of sterile water; and
oshe does not have access to a pure sine wave power inverter that can recharge her feeding pump battery.
The Applicant’s current feeding
·The Applicant currently receives approximately 90 per cent of her nutrition (formula) via a gastrojejunostomy comprising a G-port and a J-port, and about 10 per cent of her nutrition by oral intake of soft foods.
·I place significant weight on the evidence of the Applicant’s treating general paediatrician, Associate Professor ‘D’, and treating dietician, Ms ‘H’, who have described the complexity of her gut issues and the extremely high level of support the Applicant’s parents provide in relation to her feeding.
·Where there were inconsistencies in the oral evidence in relation to the Applicant’s gastrojejunostomy and ports/tubes, I have preferred the evidence of Ms ‘A’ in view of her role in the day-to-day feeding of the Applicant, and Ms ‘H’, as the Applicant’s treating dietician overseeing her nutrition and diet.
·I place very limited weight on the evidence of the dietician commissioned by the Respondent, Ms ‘I’, in view of her incorrect understanding of facts about the Applicant and her current feeding and nutrition.
The Applicant’s feeding pump mechanism
·The Applicant is currently fed via a feeding pump for 20 hours each day. The battery life for the feeding pump is approximately 24 hours; it is usually recharged from mains power at night when the Applicant is sleeping.
·A power inverter would provide an alternative method to charge the battery of the Applicant’s feeding pump when there is a power outage, the battery drains or does not fully charge, or mains power is not available (for example, when the Applicant goes off-grid camping with her family or is driven to medical appointments by her parents).
·The mechanism of ‘gravity feeding’ using a pole attached to the Applicant’s feeding backpack as proposed by Ms ‘I’ would be neither suitable nor safe for the Applicant given her young age and disabilities, which cause her to experience falls due to difficulties with her balance.
Moving the Applicant to a diet that includes blended food
·The Applicant’s parents are seeking to wean the Applicant from her current formula diet to a diet of blended bolus food fed via her G-port. This is consistent with current good practice and supported by the Applicant’s treating dietician and general pediatrician, and an occupational therapist.
·This will be a very long process and is expected to include periods where the Applicant’s feeding improves and periods it regresses.
·Benefits for the Applicant moving to a diet of blended food include:
oincreasing her caloric nutrition to assist her to gain weight;
otesting and understanding her food intolerances with the outcome to reduce her vomiting and diarrhea; and
ohopefully, gradually increasing her oral intake of foods that will also enable her to participate in the social activity of eating at a table with her peers.
·There are expected to be savings to the Australian government as the Applicant reduces her reliance on formula, which is subsidised by the pharmaceutical benefits scheme, and increases her diet of blended food.
Methods to blend bolus food
·Three methods to blend bolus food have been identified in the evidence:
oa hand-held mouli that can blend foods that have been prepared and cooked;
oa high-powered blender (such as a vitamix) that can blend foods that have been prepared and cooked; and
oa thermomix, which is a brand of ‘all-in-one’ kitchen machines that can weigh, cook and blend foods.
·The use of a hand-held mouli or a high-powered blender to make blended bolus is supported by the dietician commissioned by the Respondent, Ms ‘I’, on the basis that these are less expensive options than a thermomix and are suitable for blending food. Materials about preparing blended food filed by the Applicant also state that a ‘high-powered blender > 1000 watts’ is suitable.
·The use of a thermomix to make blended bolus food is supported by the Applicant’s treating dietician, treating general paediatrician and an occupational therapist for the following reasons:
oa thermomix blends foods to a consistency that will reduce the risk of blockages in the Applicant’s G-tube;
oa thermomix completes multiple actions of a cooking sequence (e.g. boiling, stirring, blending), which will reduce time burden on Ms ‘A’; and
oa thermomix blends food using one piece of equipment, which will reduce time Ms ‘A’ spends cleaning and reduce the risk of contamination.
·The Applicant’s parents have requested a thermomix to make blended bolus food because of:
othe time (‘up to 4 hours’) it takes for Ms ‘A’ to prepare bolus food using a high-powered blender such as a vitamix; and
oconcern that the consistency of food blended using a vitamix will again block the Applicant’s G-tube and require her to undergo an emergency tube change under fluoroscopy in hospital.
Preparation and storage of the Applicant’s milk formula
·The Applicant’s milk formula is required to be kept at a refrigerated temperature and discarded after 24 hours if unused. The formula is prepared daily by Ms ‘A’ for the next 24-hour period using a vitamix and stored in pouches that hold sufficient milk for four hours feeding. The prepared formula cannot be frozen.
·The Applicant wears a modified feeding backpack containing items required for her feeding; this includes a pouch of milk formula that is changed every four hours and an ice brick to keep the formula cold.
·The Applicant requires her milk formula to be kept at a ‘safe’, cold temperature and the ice bricks kept frozen when she is away from her home for more than four hours. The options before the Tribunal are:
oan esky/icebox: this requires ice or ice bricks to keep items cold, there is inconsistent and unclear evidence regarding the capacity of an esky or icebox to keep the Applicant’s formula at a consistent and safe temperature;
oa ‘Ridge Rider Thermo Cooler 40 Warmer 12 litres’: there is limited objective information in relation to the size and function of this item to consider whether this would be suitable for the Applicant’s needs; and
oa car fridge/freezer: connects to the car battery to maintain a safe and consistent temperature, the fridge component can store pouches of prepared formula (a day’s supply) and syringes of sterile water, the freezer component can refreeze ice bricks.
·I am satisfied the only option that will keep the Applicant’s milk formula at a cold and safe temperature for more than 24 hours and refreeze her ice bricks is a car fridge/freezer. I also place considerable weight on the evidence of the Applicant’s parents, given their extensive experience off-grid camping and Mr ‘B’’s work in the wild harvesting industry.
The Applicant’s therapy equipment
·The Applicant has a substantial amount of therapy equipment (listed in paragraph 90) that relates solely to her disability-related needs.
·This equipment significantly exceeds the usual play equipment that parents might purchase and would be expected to store for their children.
·The Applicant’s gross motor skills, balance/coordination, motor planning and sensory issues have been set out in a physiotherapist report dated 30 April 2020.
CONSIDERATION
In my consideration below of whether the Applicant’s requested supports are reasonable and necessary in accordance with subsection 34(1) of the Act, I have taken into account the objects and principles in the Act and had regard to Mortimer J’s decision in McGarrigle v National Disability Insurance Agency, in which her Honour stated:
Whether a support is “reasonable” requires a different assessment to whether a support is “necessary”. Again, it is not necessary in the context of this proceeding to be definitive about the nature and extent of the meaning of the phrase, or its components. It is enough to observe that using the concept of necessity would appear to tie one aspect of the CEO’s assessment to an evaluation of the kinds of factors set out in s 34(1)(a) and (b) and (d). The word “reasonable” would appear to be directed at factors such as those set out in s 34(1)(c) and (f). That is not to say the meaning of each word is exhausted by the factors set out in s 34(1): rather, it is to illustrate the different work that each concept does as an adjective in the phrase “reasonable and necessary supports”…
In my opinion, the text and context of s 33(5)(c), read with s 34(1) indicates that the CEO (or the delegate or Tribunal) must either be satisfied that a support has the character of being a reasonable and necessary support, or that it does not. Once a support is identified and described… then the question for the CEO (or the delegate or Tribunal) is whether she or he is satisfied that support, as identified, is reasonable and necessary for that particular participant… That determination can only be made on the basis of probative evidence.
Once a decision is made that the support… is reasonable and necessary, then subject to the other requirements in s 33(5) and s 34, the scheme requires and contemplates that support “will” be funded. In my opinion, that can only mean wholly or fully funded.
The subject matter of the CEO’s approval in s 33(2)(b) is the reasonable and necessary supports that “will” be funded. The language is imperative, and in my opinion this is consistent with the applicant’s contention that the relevant gateway established by the legislative scheme is whether the support is “reasonable and necessary”, and once through that gateway, the scheme intends the support will be fully funded…[101]
[101] [2017] FCA 308 at [91], [93-95].
1. Thermomix all-in-one kitchen machine

In closing written submissions, the Applicant’s representative contended that a thermomix will assist Ms ‘A’ to ‘prepare blended feeds at a safe consistency which will be fed to the Applicant through her G-port’.[102] These submissions further stated that a thermomix that ‘chops, cooks and blends’ food will reduce time spent preparing food and cleaning items.
[102] Applicant’s Closing Written Submissions dated 12 April 2022, page 6.
The Respondent’s counsel contended in closing written submissions that either a high-powered blender or a hand-held mouli is suitable to make blended feed, and questioned whether a thermomix would save time and costs or provide social benefits to the Applicant. Primarily, the Respondent submitted a thermomix ‘does not represent value for money as required by s 34(1)(c)’ of the Act and is ‘a duplication of a support’ and so ‘is precluded under r 5.1(c) [of the Support Rules] because the Applicant has already received funding for a vitamix’.[103] The Respondent did not make submissions in relation to whether the support of a thermomix meets the requirements in paragraphs 34(1)(a), (b), (d), (e) and (f) of the Act.
[103] Respondent’s Final Submissions dated 22 April 2022, pages 12-13.
Does this support meet the requirements of subsection 34(1) of the Act?
Based on my findings of fact, I am satisfied the Applicant’s request for a thermomix all-in-one kitchen machine:
·will assist the Applicant to meet her goals set out in her NDIS plan, including assisting her to participate in self-care tasks and meet her personal needs, as required by paragraph 34(1)(a) of the Act; and
·will support the Applicant to undertake activities, such as supporting a process for the Applicant to eventually increase her oral intake of food, that will facilitate her social participation as required by paragraph 34(1)(b) of the Act; and
·is likely to be effective and beneficial for the Applicant having regard to the current good practice evidenced by her treating dietician as required by paragraph 34(1)(d) of the Act; and
·takes account of what is reasonable to expect the Applicant’s parents to provide as required by paragraph 34(1)(e) of the Act, noting the very high level of support in relation to meal/formula preparation and feeding already provided by the Applicant’s parents; and
·is most appropriately funded through the NDIS as required by paragraph 34(1)(f) of the Act.
I now consider the issue of whether, given the particular circumstances of the Applicant, a thermomix 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, as required by paragraph 34(1)(c) of the Act.
Part 3 of the Support Rules is titled ‘Assessing proposed supports’: rule 3.1 sets out matters to be considered in relation to paragraph 34(1)(c) of the Act. Relevant to this application, these matters are:
(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);
…
(f)whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of supports…
As set out in my findings of fact in paragraph 94, alternative supports to prepare blended food include a hand-held mouli and/or a high-powered blender such as a vitamix.
I am satisfied that, while a mouli and a high-powered blender can blend pre-cooked foods, neither item is able to perform the processes of weighing, stirring, cooking and blending food that can be undertaken by a thermomix kitchen all-in-one machine. For this reason, I do not find these items are ‘comparable supports’ as contemplated by rule 3.1(a) of the Support Rules.
I have had regard to the review of kitchen all-in-one machines by Choice, noting there is a range of prices for these machines. While I accept that the cost is at the higher range of prices – but not the most expensive – thermomix has been rated first overall of 11 machines and first for both ‘cooking performance’ and ‘ease of use’.[104] I note that this is consistent with the written evidence of Ms ‘H’, who also acknowledged the higher cost of a thermomix but stated that ‘there are no other suitable alternatives that perform the same functions, to the same standard and effectiveness, with the level of convenience and potential reduction in parent burden that it offers’. For these reasons, I consider that the support of a thermomix is reasonable, relative to both the benefits achieved and the cost of alternative support. This includes seeking to alleviate the already extremely high burden on the Applicant’s parents in relation to her feeding requirements.
[104] Exhibit A13.
In considering each of the relevant matters set out in rule 3.1, I place significant weight on the evidence of the Applicant’s treating dietician, Ms ‘H’, and general paediatrician, Associate Professor ‘D’, who both provided detailed evidence about:
·the complexity and history of the Applicant’s gut issues;
·the calorific and nutritional benefit of the Applicant moving to a diet of blended foods; and
·the high levels of care, support and time already provided by the Applicant’s parents in relation to her feeding.
With regard to paragraph (f) in rule 3.1, I have considered and place weight on the evidence of Ms ‘H’ about potential cost savings to the Australian government with the Applicant commencing a diet of blended food as this will reduce her need for commercial formulas that are currently subsidised through the pharmaceutical benefits scheme.
Based on this evidence, I am satisfied that a thermomix that can prepare blended food to be fed into the Applicant’s G-port will substantially improve the life stage outcomes for and be of long-term benefit to the Applicant. I accept there are benefits to this process that include increasing the Applicant’s caloric nutrition to assist her to gain weight, testing the Applicant’s food intolerances in order to reduce her vomiting and diarrhea, and – hopefully – enabling her to eventually increase her oral intake of food and eat socially with her peers.
Finally, I have considered the wider context of the Applicant’s feeding, which is that she has not trialled blended food since August 2020 when she experienced a blockage in her G-tube and underwent emergency surgery. Since this experience (more than 22 months ago), Ms ‘A’ has ceased the process of trialling the Applicant with blended food until she can access a thermomix due to concerns about another tube blockage. In view of the extensive supporting medical evidence and the Applicant’s complex gut issues that involve vomiting and diarrhea, I consider this situation is not consistent with the objects of the Act that support the Applicant exercising choice and control in the pursuit of her goals and the NDIS providing high quality and innovative supports to enable her to maximise an independent lifestyle and full inclusion in the community.
I have also considered the Respondent’s submission that the Applicant’s parents could use support worker hours to make blended food using a vitamix. However, this appears to ignore the concerns of the Applicant’s parents about whether a vitamix is able to blend food to a consistency that will not block the Applicant’s tube; it also ignores the cost associated with using a support worker for up to four hours to make blended food.
I now consider the Respondent’s submissions that a thermomix does not meet the requirement in rule 5.1(c) of the Support Rules because the Applicant has already received NDIS funding for (and purchased) a vitamix to prepare and blend her formula, and a thermomix duplicates this support.
I do not agree. As I have already stated in paragraph 102, I do not find a vitamix that can only blend food is a comparable support to a thermomix that is able to weigh, stir, cook and blend food. I am therefore satisfied that a thermomix does not duplicate the support of a vitamix that blends the Applicant’s formulas.
For these reasons, I am satisfied the Applicant’s requested support of a thermomix meets the requirements in subsection 34(1) of the Act.
2. Car fridge/freezer
The Applicant’s representative contended in closing written submissions that a car fridge/freezer will enable the Applicant to leave her home for longer periods of time and allow her to go camping with her family ‘in locations without power’.[105]
[105] Applicant’s Closing Written Submissions dated 12 April 2022, page 3.
In closing written submissions, the Respondent’s counsel considered the activity of off-grid camping was a ‘lifestyle preference’ for the Applicant’s family as this was an activity they did before the Applicant was born.[106] The Respondent also proposed the following less-expensive alternatives to a car fridge/freezer were available to the Applicant:
·an esky/icebox or a ‘Ridge Rider Thermo Cooler 40 Warmer 12 litres’ would be ‘adequate’ to maintain the Applicant’s milk formula at a safe temperature;[107] and
·Ms ‘A’ can prepare the Applicant’s milk formula as needed rather than storing pre-prepared milk formula in a car fridge/freezer.
[106] Respondent’s Final Submissions dated 22 April 2022, page 17.
[107] Respondent’s Final Submissions dated 22 April 2022, page 15.
Consequently, the Respondent submitted a car fridge/freezer does not represent value for money as required by s 34(1)(c) of the Act and is precluded by rule 5.1(b) because it is not related to the Applicant’s disability.
Does this support meet the requirements of subsection 34(1) of the Act?
Based on the evidence before the Tribunal, I am satisfied the Applicant’s request for a car fridge/freezer meets the requirements of subsection 34(1) of the Act. In particular, I find a car fridge/freezer will:
·assist the Applicant to meet her goals set out in her NDIS plan, including assisting her to become more independent in exploring her environment, as required by paragraph 34(1)(a) of the Act; and
·support the Applicant to undertake activities that will facilitate her social participation, such as off-grid camping with her family, as required by paragraph 34(1)(b) of the Act; and
·is likely to be effective and beneficial for the Applicant having regard to current good practice as required by paragraph 34(1)(d) of the Act; and
·takes account of what is reasonable to expect the Applicant’s parents to provide as required by paragraph 34(1)(e) of the Act; and
·is most appropriately funded through the NDIS as required by paragraph 34(1)(f) of the Act.
I now consider the Respondent’s submissions in relation to whether a car fridge/freezer meets the requirements of paragraph 34(1)(c) of the Act; that is, whether a car fridge/freezer 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 matters in rule 3.1 of the Support Rules relevant to this requested support are:
(a)whether there are comparable supports which would achieve the same outcome at a substantially lower cost;
…
(f)whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of supports…
As set out in paragraph 113, the Respondent submitted that an esky/icebox or the ‘Ridge Rider Thermo Cooler 40 Warmer 12 litres’ are comparable supports to a car fridge/freezer. The Respondent also contended Applicant’s mother can prepare formula as it is needed rather than storing prepared milk formula in a car fridge/freezer.
I have set out in my findings of fact at paragraph 94 in relation to an esky/icebox and the ‘Ridge Rider Thermo Cooler 40 Warmer 12 litres’. I do not find the evidence shows either of these options are comparable supports to a car fridge/freezer that can maintain a consistent and safe temperature, store the Applicant’s prepared formula for 24 hours and syringes of sterile water, and refreeze the Applicant’s ice bricks. I also do not consider it appropriate – in view of the multiple steps involved with preparing the Applicant’s milk formula in accordance with food safety requirements – to require the Applicant’s parents to prepare her milk formula as needed, that is, every four hours. It is clear this would be an extremely onerous and time-consuming task for the Applicant’s parents, especially in addition to her current high level of required support and care.
In relation to submissions made by the Respondent’s counsel that the Applicant’s participation in off-grid camping is a ‘lifestyle preference’, I have considered the evidence of the Applicant’s treating general paediatrician, Associate Professor ‘D’, and dietician, Ms ‘H’. In particular, I have had regard to and place weight on the oral evidence of Associate Professor ‘D’, who has known and treated the Applicant since birth, and explained to the Tribunal that the Applicant’s parents consistently undertook ‘careful risk assessment’ in relation to the activities undertaken by the Applicant and she should be able to have access to technology that would ‘allow the family to live as a family with their child’s disability’.
I also note the objects of the Act include that ‘high quality and innovative supports’ should ‘enable people with disability to maximise independent lifestyles and [their] full inclusion in the community’, and the general principles of the Act state that people with disability should have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development. Further, subsection 4(11) of the Act specifies that ‘reasonable and necessary supports for people with disability’ should support people with disability to pursue their goals and maximise their independence, to live independently and be included in the community as fully participating citizens, and to develop and support their capacity to undertake activities that enable them to participate in the community and in employment. It is my view that a car fridge/freezer, which would support the Applicant to be able to be away from her home for longer periods of time and support her to participate in off-grid camping with her family, is consistent with these objects and general principles of the Act.
In relation to the Respondent’s submission that a car fridge/freezer is precluded by rule 5.1(b) because it is not related to the Applicant’s disability, this is simply not consistent with the evidence before the Tribunal and my findings of fact at paragraph 94 that demonstrates how a car fridge/freezer is able to support the Applicant’s feeding.
For the reasons set out above, I am satisfied that the Applicant’s requested support of a car fridge/freezer meets the requirements in subsection 34(1) of the Act.
3. Power inverter
The Applicant contended in closing written submissions that a power inverter was sought ‘for the purpose of ensuring there is access to power when home supply is not available’ for her feeding pump.[108] This includes when there is no mains power due to power cuts at the family home and/or when the Applicant goes off-grid camping with her family.
[108] Applicant’s Closing Written Submissions dated 12 April 2022, page 2.
Closing written submissions by the Respondent stated that a power inverter is not a reasonable and necessary support because:
·it is ‘not related to the Applicant’s disability, but rather the family’s desire to go on the unusual experience of “off grid” camping where there is no electricity’; and
·it is ‘the family’s choice’ to travel to locations without electricity for more than 24 hours.[109]
[109] Respondent’s Final Submissions dated 22 April 2022, page 21.
Does this support meet the requirements of subsection 34(1) of the Act?
Based on my findings of fact, I am satisfied the Applicant’s request for a power inverter meets the requirements of subsection 34(1) of the Act. In particular, I am satisfied the evidence shows a power inverter will:
·assist the Applicant to meet her goals set out in her NDIS plan, including assisting her to become more independent in exploring her environment, as required by paragraph 34(1)(a) of the Act; and
·support the Applicant to undertake activities, such as off-grid camping, that will facilitate her social participation as required by paragraph 34(1)(b) of the Act; and
·represents value for money in that the cost of the support is reasonable, relative to both the benefits achieved and the cost of alternative support as required by paragraph 34(1)(c) of the Act; and
·is likely to be effective and beneficial for the Applicant having regard to current good practice as required by paragraph 34(1)(d) of the Act; and
·takes account of what is reasonable to expect the Applicant’s parents to provide as required by paragraph 34(1)(e) of the Act; and
·is most appropriately funded through the NDIS as required by paragraph 34(1)(f) of the Act.
I now consider the Respondent’s submission that a power inverter for the Applicant is precluded by rule 5.1(b) of the Support Rules, which states that a support will not be provided or funded under the NDIS if it is not related to the participant’s disability.
I do not find these submissions by the Respondent to be consistent with the evidence before the Tribunal. In particular, as I have set out in my findings of fact at paragraph 94, the Applicant has requested a power inverter at a cost of $129 in order to recharge the battery of her feeding pump when she is outside her home. I accept that a power inverter will enable the Applicant’s feeding pump to be charged when she is driving to medical appointments with her parents, when the battery drains unexpectedly or when mains power is unavailable. This will also support the Applicant’s short-term goal to ‘become more independent in exploring her environment’ as outlined in her NDIS plan.
I have already considered the Respondent’s submissions about the Applicant participating in off-grid camping with her family and rely on my reasons in paragraphs 120 and 121.
For these reasons, I am satisfied the Applicant’s requested support of a power inverter meets the requirements in subsection 34(1) of the Act.
4. Garden shed kit
In closing submissions, the Applicant’s representative submitted that a garden shed would support the Applicant ‘by storing her disability specific equipment’ that is currently located in the family home and on the veranda.[110]
[110] Applicant’s Closing Written Submissions dated 12 April 2022, page 5.
The Respondent, in closing written submissions, contended that a garden shed kit does not meet the requirements of paragraphs 34(1)(a), (b), (d) and (e) of the Act, and is excluded by rule 5.1(d) of the Support Rules as a garden shed relates to day-to-day living costs that are not attributable to the Applicant’s disability support needs.
Does this support meet the requirements of subsection 34(1) of the Act?
Based on my findings of fact, I am satisfied the Applicant’s request for a garden shed kit meets the requirements of subsection 34(1) of the Act. In particular, I find the evidence shows a garden shed kit will:
·assist the Applicant to meet her goals set out in her NDIS plan as required by paragraph 34(1)(a) of the Act by supporting her to become more independent in exploring her environment; and
·support the Applicant to undertake activities that will facilitate her social participation as required by paragraph 34(1)(b) of the Act; and
·represents value for money in that the cost of the support is reasonable, relative to both the benefits achieved and the cost of alternative support as required by paragraph 34(1)(c) of the Act; and
·is likely to be effective and beneficial for the Applicant having regard to current good practice as required by paragraph 34(1)(d) of the Act; and
·takes account of what is reasonable to expect the Applicant’s parents to provide as required by paragraph 34(1)(e) of the Act; and
·is most appropriately funded through the NDIS as required by paragraph 34(1)(f) of the Act.

In making this decision, I have considered the submissions of the Applicant and the Respondent. As outlined in my findings of fact at paragraph 94, I am satisfied the Applicant’s therapy equipment to be stored in the garden shed relates solely to her disability-related needs; this equipment is used to build her capacity to undertake activities and therefore, will facilitate her social participation. I am further satisfied that this equipment is in excess of the usual play equipment used by a child; further, the current storage of this equipment under beds and in cupboards in bedrooms, in the lounge and on the outside deck, exceeds the reasonable level of storage the Applicant’s parents would be expected to provide.
I now consider the Respondent’s submission that a garden shed kit for the Applicant is excluded by rule 5.1(d) of the Support Rules, which states that a support will not be provided or funded under the NDIS if it relates to ‘day-to-day living costs’ that ‘are not attributable to a participant’s disability support needs’. Rule 5.2(a) of the Support Rules further states that the ‘day-to-day living costs’ referred to in rule 5.1(d) do not include ‘additional living costs that are incurred by a participant solely and directly as a result of their disability support needs’.
As I have determined in paragraph 134 above, I am satisfied that the garden shed kit requested by the Applicant is required solely to store her disability-related therapy equipment. Consistent with rule 5.2(a) of the Support Rules, I therefore find a garden shed kit is a living cost that is incurred by the Applicant ‘solely and directly’ as a result of her disability support needs.
For these reasons, I am satisfied the Applicant’s requested support of a garden shed kit meets the requirements in subsection 34(1) of the Act.
CONCLUSION
For the reasons I have set out above, I find the following supports requested by the Applicant satisfy the requirements of subsection 34(1) of the Act: a thermomix all-in-one kitchen machine; a car fridge/freezer; a 1500W pure sine wave power inverter; and a garden shed kit.
In relation to funding these supports, I note that – except for the quote for a car fridge/freezer filed with the Tribunal on 29 March 2022 – the quotes for a thermomix, a power inverter and a garden shed kit appear to be from 2020 (when the review process commenced) and may therefore need to be updated.
DECISION
The Tribunal sets aside the decision made by the Respondent on 31 January 2022, which varied the reviewable decision made by the Respondent on 11 September 2020. In substitution, the Tribunal decides that:
·the Applicant is entitled, pursuant to subsection 33(2) of the National Disability Insurance Scheme Act 2013 (Cth), to those supports listed in the statement of supports in the Applicant’s NDIS plan that commenced on 31 January 2022; and
·the following items will be funded as reasonable and necessary supports for the Applicant in accordance with subsection 34(1) of the National Disability Insurance Scheme Act 2013 (Cth):
oa thermomix all-in-one kitchen machine; and
oa car fridge/freezer; and
oa 1500W pure sine wave power inverter; and
oa garden shed kit.

I certify that the preceding 140 (one hundred and forty) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

............................[sgd]............................................
Associate
Dated: 21 June 2022

Date(s) of hearing: 25, 28 and 29 March 2022

Date final submissions received: 22 April 2022

Advocate for the Applicant: Ms Mitch Mulqueen, Ability Rights Centre

Counsel for the Respondent: Ms Prue Bindon

Solicitors for the Respondent: Mr Riley Ingham, HWL Ebsworth Lawyers

[2022] AATA 1766

21 June 2022

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Remedies

Date(s) of hearing:	25, 28 and 29 March 2022
Date final submissions received:	22 April 2022
Advocate for the Applicant:	Ms Mitch Mulqueen, Ability Rights Centre
Counsel for the Respondent:	Ms Prue Bindon
Solicitors for the Respondent:	Mr Riley Ingham, HWL Ebsworth Lawyers