RKKR and National Disability Insurance Agency
[2024] AATA 2913
•15 August 2024
RKKR and National Disability Insurance Agency [2024] AATA 2913 (15 August 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2022/3654
Re:RKKR
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Deputy President A Younes
Date:15 August 2024
Place:Sydney
The Tribunal affirms the decision under review.
...................................[SGD].....................................
Deputy President A Younes
CATCHWORDS
National Disability Insurance Scheme — reasonable and necessary supports — value for money — Restrictive Practice — Environmental restrictive practice — childproofing — freedom of movement — behavioural support plan — decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018National Disability Insurance Scheme (Supports for Participants) Rules 2013
CASES
DFFG and National Disability Insurance Agency [2023] AATA 264
McGarrigle v National Disability Insurance Agency [2017] FCA 308
Mulligan v National Disability Insurance Agency (2015) 233 FCR 201
National Disability Insurance Agency v WRMF (2020) 276 FCR 415SECONDARY MATERIALS
NSW Restrictive Practices Authorisation Policy – June 2019
REASONS FOR DECISION
Deputy President A Younes
15 August 2024
INTRODUCTION
The Applicant who was born in August 2014 is a participant in the National Disability Insurance Scheme (NDIS). On 4 May 2022, the Applicant lodged an application with the Administrative Appeals Tribunal (AAT) seeking review of a decision made by a delegate of the CEO, on 2 May 2022 under subsection 100(2) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act), which approved a statement of participant supports (SOPS) forming part of the Applicant’s NDIS plan.[1]
[1] Ex 5, 15-20.
Principles & Objectives of the NDIS Act
The NDIS Act operates in pursuit of the objectives set out in section 3 of the NDIS Act. Section 3 of the NDIS Act makes particular reference to the purpose of providing reasonable and necessary supports.
Subsection 3(1) provides, in part:
The objects of this Act are to:
…
(c)support the independence and social and economic participation of people with disability; and
(d)provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme; and
(e)enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and
(f)facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability; and
(g)promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community; and
(ga) protect and prevent people with disability from experiencing harm arising from poor quality or unsafe supports or services provided under the National Disability Insurance Scheme; and
(h)raise community awareness of the issues that affect the social and economic participation of people with disability, and facilitate greater community inclusion of people with disability; and
…
The objects of the NDIS Act are to be achieved by “adopting an insurance-based approach, informed by actuarial analysis, to the provision and funding of supports for people with disability.”.[2]
[2] Subsection 3(2)(b) of the NDIS Act.
In giving effect to the objects of the Act, regard is to be had to, among other things, “the need to ensure the financial sustainability” of the Scheme and “the provision of services by other agencies, Departments or organisations and the need for interaction between the provision of mainstream services and the provision of supports under the National Disability Insurance Scheme.”.[3]
[3] Subsection 3(3) of the NDIS Act.
Section 4 of the NDIS Act refers to the General principles guiding actions under the NDIS Act, and provides a set of principles. Relevantly, the following principles highlight matters concerning reasonable and necessary supports:
(1)People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional, and intellectual development.
...
(3)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.
(4)People with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports.
(5)People with disability should be supported to receive reasonable and necessary supports, including early intervention supports.
...
(8)People with disability have the same right as other members of Australian society to be able to determine their own best interests, including the right to exercise choice and control, and to engage as equal partners in decisions that will affect their lives.
(9)People with disability should be supported in all their dealings and communications with the Agency and the Commission so that their capacity to exercise choice and control is maximised in a way that is appropriate to their circumstances and cultural needs.
...
(11)Reasonable and necessary supports for people with disability should:
(a) support people with disability to pursue their goals and maximise their independence; and
(b) support people with disability to live independently and to be included in the community as fully participating citizens; and
(c) develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment.
(12)The role of families, carers, and other significant persons in the lives of people with disability is to be acknowledged and respected.
...
(14)People with disability should be supported to receive supports outside the National Disability Insurance Scheme, and be assisted to coordinate these supports with the supports provided under the National Disability Insurance Scheme.
(15)In exercising their right to choice and control, people with disability require access to a diverse and sustainable market for disability supports in which innovation, quality, continuous improvement, contemporary best practice, and effectiveness in the provision of those supports is promoted.
…
Subsection 4(17) refers to the need to ensure the financial sustainability of the Scheme. It provides that is “the intention of the Parliament that the Ministerial Council, the Minister, the Board, the CEO, the Commissioner and any other person or body is to perform functions and exercise powers under this Act in accordance with these principles, having regard to the need to ensure the financial stability of the National Disability Insurance Scheme”.
Subsection 32(1) of the NDIS Act provides that the CEO of the Agency is required to facilitate the preparation of a participant's plan. Section 33 of the NDIS Act provides that the plan must include the participant's statement of goals and aspirations and a statement of participant supports prepared with the participant and approved by the CEO. It is noted that the statement of goals and aspirations is a statement by the participant and does not require the approval of the CEO. However, the statement of participant supports must specify the reasonable and necessary supports (if any) that will be funded under the Scheme.[4]
[4] Section 33(2)(b) of the NDIS Act.
A participant’s plan is prepared in accordance with the NDIS Act and regulations made under the NDIS Act, and must include a SOPS. The SOPS must be approved in accordance with the NDIS Act, and any regulations made under the NDIS Act such as the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (‘the Supports for Participants Rules’).
Subsection 33(5) of the NDIS Act requires that the CEO (or his or her delegate), in deciding whether to approve the SOPS under subsection 33(2), have regard to a number of factors, including the participant’s statement of goals and aspirations and relevant assessments conducted in relation to the participant, and be satisfied the supports are ‘reasonable and necessary’.
Subsection 34(1) of the NDIS Act requires six mandatory criteria to be met before a support is considered to be a ‘reasonable and necessary support’. Subsection 34(2) provides that the NDIS rules may prescribe methods or criteria to be applied or matters to which the decision maker is to have regard, in deciding whether they are satisfied that the criteria under subsection 34(1) have been met in respect of a requested support.
Subsection 34(1) of the NDIS Act provides as follows:
34 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 [NDIS], and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(i)as part of a universal service obligation; or
(ii)in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
The phrase “reasonable and necessary supports” is not defined in the NDIS Act, but its meaning can be determined with the assistance of the provisions referred to above. As the Federal Court said in McGarrigle v National Disability Insurance Agency:
Section 13 expressly indicates that a “support” might be a service, or it might be an activity. In my opinion, although s 14 (which deals with funding by the Agency of others to assist the participant rather than the Agency assisting the participant directly) is expressed purposively, its subject matter is also “support” - whether by way of services or activities or any other matter that assists a person with disability in a way that is consistent with the general principles set out in s 4. The word “support” must be given a broad construction in this context, and there is no need for the purposes of this proceeding to seek to give it any comprehensive meaning. Rather, the point to be made is that it is a practical description of the means by which a person with disability is assisted. It is not intended, in my opinion, to encompass funding, especially because what s 14 contemplates is that the Agency will “fund” a support. The Agency cannot “fund” funding.
…
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”. [5]
[5] McGarrigle v National Disability Insurance Agency [2017] FCA 308 at [88] and [91].
Sections 35 and 209 of the NDIS Act provide for the making of Rules in connection with the funding or provision of reasonable and necessary, as well as general supports. As a Legislative Instrument, the Rules bind the Tribunal in making decisions under the Act.
Part 5 of the Rules sets out general criteria for supports and those that will not be funded or provided.
The Rules include:
General criteria for supports
5.1A support will not be provided or funded under the NDIS if:
(a) it is likely to cause harm to the participant or pose a risk to others; or
(b) it is not related to the participant’s disability; or
(c) it duplicates other supports delivered under alternative funding through the NDIS; or
(d) it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs.
5.2The day-to-day living costs referred to in paragraph 5.1(d) do not include the following (which may be funded under the NDIS if they relate to reasonable and necessary supports):
(a) additional living costs that are incurred by a participant solely and directly as a result of their disability support needs;
(b) costs that are ancillary to another support that is funded or provided under the participant’s plan, and which the participant would not otherwise incur.
Supports that will not be funded or provided
5.3The following supports will not be provided or funded under the NDIS:
(a) a support the provision of which would be contrary to:
(i)a law of the Commonwealth; or
(ii)a law of the State or Territory in which the support would be provided;
(b) a support that consists of income replacement.
Part 3 of the Supports Rules provides for matters to be considered in deciding whether a requested support represents value for money.
The Schedule to the Rules sets out the considerations relevant to determining whether supports are most appropriately funded through the Scheme:
7.1The Act limits the supports that can be provided or funded under the NDIS to supports that are not more appropriately funded or provided through other service systems, for example as part of a universal services obligation or in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
7.2The considerations set out in this Schedule must be taken into account by the CEO in deciding whether a support is more appropriately provided or funded by the NDIS or another service system.
7.3For the avoidance of doubt, while this Schedule sets out considerations relevant to whether a support should be considered to be more appropriately provided or funded through another service system, it does not purport to impose any obligations on another service system to fund or provide particular supports.
The Tribunal notes the observations of Mortimer J in McGarrigle v National Disability Insurance Agency [2017] FCA 308 at [43] as follows:
[The Supports for Participants Rules] are an important element of the legislative scheme, introducing the ability to modify the operation of ss 33 and 34 by, for example, excluding certain kinds of supports from inclusion in participant plans. It is through the Rules that the executive is able to implement … some policy decision-making about the nature and extent of supports to be provided or funded under the NDIS. [6]
[6] McGarrigle v National Disability Insurance Agency [2017] FCA 308 at [43].
In National Disability Insurance Agency v WRMF,[7] the Court considered the meaning of reasonable and necessary support in the context of the Act, namely:
The supports to be provided to a person who qualifies as a participant are intended to accommodate an individual’s particular impairments and to assist that particular individual to be a participating member of the Australian community …
… there is no doubt that the contextual use of the phrase in this Act links it to public funding to be provided to a participant. In that context, the phrase connotes supports which meet a threshold which justifies – by reference to the context, objects and guiding principles of the Act and the facts of the case – the expenditure of public funds for that support, for a particular participant. As we have already explained, the phrase also needs to be understood taking into account what has qualified a person as a participant, and the links between a person’s impairment and their full participation in the community, in the same variety of ways as persons without a disability might choose to participate…
[7] National Disability Insurance Agency v WRMF (2020) 276 FCR 415 at [141] and [151].
In Mulligan v National Disability Insurance Agency,[8] Mortimer J said:
The access criteria in Ch 3 of the Act are an essential component of the NDIS as conceived. They are designed to impose a number of thresholds on access to the NDIS. By s 13, broad and general provision may be made for persons with disabilities – but access to the NDIS, and the supports, funding and autonomy it is intended to deliver, is reserved for a subcategory of persons with disabilities.
…
Although an impairment may, in general terms … be responsible for or related to a disability, the threshold in s 24 revolves around the severity and permanency of the effects of the impairments experienced by a person, so as to justify the provision of the “reasonable and necessary supports” to which participants may be entitled, after assessment in accordance with Pt 2 of Ch 3 of the Act.
[8] Mulligan v National Disability Insurance Agency (2015) 233 FCR 201 at [50] and [52].
Material before the Tribunal
The parties lodged a set of joint and supplementary documents (‘the T-Documents’). The T-Documents contained, among other things, a copy of the delegate’s decision record, reports/Statements from various health practitioners, legislation, and policy documents. The Respondent and the Applicant lodged submissions and Statements of Facts, Issues, and Contentions (SFIC). A table was provided summarizing the issues in dispute.[9]
[9] Ex 4.
The documents before the Tribunal are Exhibits 1-6. Post-hearing materials were also received.
The Applicant’s parents and two witnesses gave evidence during the hearing.
BACKGROUND
The Applicant lives with his parents and three siblings. They live in a home owned by a relative who occupies the top level. The Applicant attends a special education school. In her report dated 21 March 2019, Dr JL, Paediatric Physician[10] referred to Dr JM, Paediatrician, who as early as 2017 had diagnosed the Applicant with Autism Spectrum Disorder (ASD). The diagnosis was confirmed by other health practitioners, including Ms NF (Occupational Therapist - report dated 8 March 2022),[11]and Ms CZ (Occupational Therapist – report dated 25 January 2022).[12] The Applicant has also been diagnosed with Intellectual Disability (report dated 14 February 2002 of Ms KH and TS, Speech Therapists).[13]
[10] Ex 5, 21-22.
[11] EX 5, 40-43.
[12] Ex 5, 23-36.
[13] Ex 5, 37-39.
Emeritus Professor SE, Child and Adult Psychiatrist, provided a comprehensive report, dated 15 December 2022[14] setting out the Applicant’s developments, and confirming the diagnoses of Intellectual Developmental Disorder (Intellectual Disability) (Severe), and Autism Spectrum Disorder (ASD). Emeritus Professor SE noted that although “it is not possible to estimate an overall mental age with precision the best estimate is that he is functioning overall at a mental age of around 2 years”.[15] In the course of the hearing, Emeritus Professor SE gave evidence that the Applicant’s mental age is significantly lower than his biological age and that his IQ is about a quarter of his biological age. In essence, Emeritus Professor SE estimated the Applicant’s current mental age to be about two and a half years old.
[14] EX 3, 280-290.
[15] Ex 3, 284.
Emeritus Professor SE gave evidence that the Applicant has partial impairments of social relations including limited understanding of others’ feelings and thoughts, repetitive and restrictive behaviours, expressive language equivalent to that of a 13-month-old child, and motor functions of a 4-year-old child. Emeritus Professor SE expressed the opinion that the Applicant requires supervision at a level commensurate with that of a two-and-a-half-year-old child.
In a joint statement by the Applicant’s parents,[16] the parents referred to the challenges faced by the family in managing the Applicant’s daily routine and behaviours of concern. They noted that the Applicant is fully dependent on his parents in self-care tasks and to the situation being “mentally, physically and emotionally exhausting”.[17]
[16] Ex 3, 261-262.
[17] Ex 3, 262.
The Applicant’s mother gave evidence that the Applicant requires constant supervision and relies heavily on the family’s care. She stated that he is non-verbal and that he is like a new-born child who cannot be left alone. She stated that the lack of communication can cause the Applicant to have a ‘meltdown’, resulting in the Applicant screaming, throwing objects, and climbing on furniture. Similar evidence was given by the Applicant’s father.
The Tribunal acknowledges the family’s challenges.
In making its findings, the Tribunal needs to give regard to the Applicant’s stated NDIS plan goals which include:
(a)Short term goals:
(i) To improve communication skills; and
(ii) To increase independence in self-care activities.
(b)Medium or long-term goals:
(i) To improve attention span, safety awareness and other cognitive skills;
(ii) To improve social and play skills;
(iii) To improve gross motor and fine motor skills;
(iv) To improve emotional tolerance and understanding, and his ability to self-regulate; and
(v) To access respite care during school holidays to build social skills.[18]
[18] Ex 5, 64-66.
A plan that commenced on 9 March 2023[19] included the following supports:
[19] Ex 3, 291-305
(a)$2,695.15 for continence support and the purchase of 26 bottles of lotion / soap;
(b)$74.00 for the purchase of a body sock;
(c)$1,248.99 for the purchase of an iPad and communication application;
(d)$1,000 for low-cost, low-risk assistive technology;
(e)2 hours per day, on a weekday, of 1:1 support worker assistance for self-care and activities of daily living; and
(f)3 hours per Saturday of 1:1 support worker assistance for community participation.
(g)120 hours of therapy support, to be used flexibly, including for occupational therapy, speech therapy, physiotherapy and/or music therapy;
(h)25 hours per year for a behaviour management plan including training in behaviour management strategies;
(i)30 hours of specialist behaviour intervention support; and
(j)24 hours of support for social skills development.
A number of supports have been updated since that time.
ISSUES
This matter has had a long history and although it commenced with a substantial number of issues in dispute, many have been resolved through conciliation and other processes, including s 42D remittals.
There is before the Tribunal a table, setting out the issues in dispute,[20] and those were confirmed during the hearing. The issues that have been resolved are noted in the Table.
[20] Ex 4.
The issues are as follows:
Item Requested Support Parties’ Position 1 Raising the height of the internal child safety gate The Agency understands this request is no longer pursued by the Applicant.
Resolved
2 Install kitchen cupboard locks The Agency understands this request is no longer pursued by the Applicant.
Resolved
3 Replace broken mirrored doors with timber doors and replace broken
fridge
The Agency understands this request is no longer pursued by the Applicant.
Resolved
4 Install Perspex box around the TV Support remains in dispute. 5 Excavate the concrete slab in the backyard and replace it with grass Support remains in dispute. 6 Install play equipment on the grass in the backyard Support remains in dispute. 7 Remove planter boxes and raise the height of the existing fence Support remains in dispute. 8 Install two side gates to prevent
access to the front yard of the property
The Agency understands this request is not pursued by the Applicant.
Resolved
9 Support worker assistance – 6 hours per weekday – school terms The Applicant has accepted the Agency’s offer of support worker assistance, 3 hours per day 7 days per week (40 weeks per year).
Resolved
10 Support worker assistance – 7 hours per weekday – school holidays The Applicant has accepted the Agency’s offer of support worker assistance, 4 hours per day on weekdays in the School holidays, with 3 hours per day on the weekends (12 weeks per year).
Resolved
11 Access to community, social activities, Saturday – 6 hours per week for a day program and 4 hours per week for other community access participation The Agency understands this request is no longer pursued by the Applicant.
Resolved
12 Consumables – incontinence support 4-6 nappies per day plus
cream
The Agency understands this request is no longer pursued by the Applicant.
Resolved
13 36 hours per annum for occupational therapy The Agency agrees to 36 hours per annum of occupational therapy.
Resolved
14 50 hours per annum for speech therapy The Agency agrees to 50 hours per annum of speech therapy.
Resolved
15 36 hours per annum for behaviour support The Applicant has accepted the Agency’s offer of Level 2 Behaviour Support, including:
1. 90 hours for specialist behaviour
support intervention;
2. 30 hours for training; and
3. 40 hours for social skills.
Resolved
16 52 hours per annum for exercise physiology The Agency understands this request is no longer pursued by the Applicant.
Resolved
The Tribunal is satisfied that the resolved issues are the correct and preferable decisions, and as such, the Tribunal will focus on the unresolved issues.
FINDINGS and REASONS
Restrictive Practices Rules
One of the central issues relating to the unresolved issues concerns the Restrictive Practices Rules (RPR),[21] and their application in relation to a number of those issues.
[21] National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018
A restrictive practice is defined in Rule 6(e) of the RPR as something that “restrict[s] a person’s free access to all parts of their environment, including items or activities”. Specifically, Rule 6 states:
A restrictive practice is a regulated restrictive practice if it is or involves any of the following:
(a)seclusion, which is the sole confinement of a person with disability in a room or a physical space at any hour of the day or night where voluntary exit is prevented, or not facilitated, or it is implied that voluntary exit is not permitted;
(b)chemical restraint, which is the use of medication or chemical substance for the primary purpose of influencing a person’s behaviour. It does not include the use of medication prescribed by a medical practitioner for the treatment of, or to enable treatment of, a diagnosed mental disorder, a physical illness or a physical condition;
(c)mechanical restraint, which is the use of a device to prevent, restrict, or subdue a person’s movement for the primary purpose of influencing a person’s behaviour but does not include the use of devices for therapeutic or non-behavioural purposes;
(d)physical restraint, which is the use or action of physical force to prevent, restrict or subdue movement of a person’s body, or part of their body, for the primary purpose of influencing their behaviour. Physical restraint does not include the use of a hands-on technique in a reflexive way to guide or redirect a person away from potential harm/injury, consistent with what could reasonably be considered the exercise of care towards a person.
(e)environmental restraint, which restrict a person’s free access to all parts of their environment, including items or activities.
Note: For the definition of restrictive practice, see section 9 of the Act. Only regulated restrictive practices are covered by this instrument.[22]
[22] Ex 3, 327.
Section 9 of the Act defines a restrictive practice as ‘any practice or intervention that has the effect of restricting the rights or freedom of movement of a person with disability’.
The RPR outline the restrictive practices that are subject to regulation and oversight by the National Disability Insurance scheme (NDIS) Quality and Safeguards Commission (the Commission). The rationale for the RPR is set out in the accompanying Explanatory Statement, the introduction to which states:
In limited circumstances, and as a last resort, a restrictive practice may be used. A restrictive practice is an intervention such as seclusion, chemical, physical, mechanical or environmental restraint, which has the effect of restricting the rights or freedom of movement of a person with disability.
Rule 8 provides that the registration of the registered NDIS provider is subject to the requirements that the provider must not use a restrictive practice which has been prohibited by a state or territory in relation to an NDIS participant.
Rule 9 provides that, for a registered NDIS provider to use a regulated restrictive practice, it must comply with any authorisation process for the use of a regulated restrictive practice in NSW when providing NDIS supports or services to a person in NSW. The provider must lodge evidence with the Commissioner that the use is authorised as soon as reasonably practicable after the use of the restrictive practice.
Rule 11 provides that if there is no behaviour support plan, and a registered NDIS provider uses a regulated restrictive practice in respect of a participant, then the NDIS provider’s registration is conditional upon the provider taking all reasonable steps to facilitate the development of an interim behaviour support plan by a specialist behaviour support provider that covers the use of the restrictive practice within 1 month and a comprehensive behaviour support plan within 6 months.
Rule 18 provides that the provider (if not an NDIS behaviour support practitioner) must engage an NDIS behaviour support practitioner who must develop a behaviour support plan for a person with a disability that contains a regulated restrictive practice. Rule 19 states that if a regulated restrictive practice is used in relation to a person with a disability, then the behaviour support must be developed an interim behaviour support plan within one month after being engaged and a comprehensive behaviour support plan within six months after being engaged.
Rule 20 outlines how behaviour support plans containing a regulated restrictive practice must be developed:
(1)The registration of a specialist behaviour support provider is subject to the conditions in this section in relation to behaviour support plans developed by the provider.
(2)A behaviour support plan for a person with disability that contains a regulated restrictive practice must be developed in accordance with any authorisation process (however described) in the State or Territory in which the regulated restrictive practice is, or is proposed to be, used.
(3)In developing and reviewing a behaviour support plan for a person with disability, the specialist behaviour support provider must take all reasonable steps to:
(a) reduce and eliminate the need for the use of regulated restrictive practices in relation to the person with disability; and
(b) take into account any previous behaviour support assessments and other assessments; and
(c) make changes within the environment of the person with disability that may reduce or remove the need for the use of regulated restrictive practices; and
(d) consult with the person with disability; and
(e) consult with the person with disability’s family, carers, guardian or other relevant person; and
(f) consult with the registered NDIS provider who may use the regulated restrictive practice and other relevant specialists.
(4)When consulting in accordance with paragraph (3)(d) or (e), the specialist behaviour support provider must provide details of the intention to include a regulated restrictive practice in the behaviour support plan, in an appropriately accessible format, to:
(a) the person with disability subject to the plan; and
(b) the person with disability’s family, carers, guardian or other relevant person.
(5)In developing a comprehensive behaviour support plan for a person with disability, the specialist behaviour support provider must undertake a behaviour support assessment, including a functional behavioural assessment of, the person with disability.
Rule 21(3) outlines the conditions under which regulated restrictive practices can be used. Rule 22 provides that a behaviour support plan which contains a regulated restrictive practice must be reviewed when there is a change of circumstances which requires the plan to be amended or in any event at least every 12 months. Rule 24 provides that a behaviour support plan containing a regulated restrictive practice must be lodged with the Commissioner.
NSW Restrictive Practices Authorisation Policy – June 2019
The use of restrictive practices in New South Wales (NSW) are also subject to the NSW Restrictive Practices Authorisation Policy – June 2019 (RPA). An unauthorised use of a restrictive practice is prohibited in NSW. The decision to provide authorisation will be based on a collection of supporting information such as a behaviour support plan, which is informed by a functional assessment of behaviour. The authorisation of restrictive practices in NSW is intended to ensure that restrictive practices are only used when they are the least restrictive alternative in the circumstances, and that they are used for the shortest time possible. Among other things, the RPA requires a behaviour support plan written by a behaviour support practitioner deemed suitable by the NDIS Commission. The NSW Government requires registered NDIS providers and behaviour support practitioners using restrictive practices in NSW to use the online Family and Community Services RPA System.
What is clear from the above, is that a restrictive practice is subject to significant legislative and policy principles, reflecting the seriousness of the practice. In NSW, a restrictive practice must be authorised and there are steps to be taken prior to any such authorisation being granted.
Relevantly, in this case, the Respondent sought the views of the Commission as to whether some of the proposed requested supports constitute regulative restrictive practices in accordance with section 9 of the Act. The Commission was asked to comment on a number of requested supports including raising the height of the fence. The Commission advised:[23]
·The requested supports may meet the definition of a regulated restrictive practice under Part 1, Section 6(e) of the Rules that describe ‘environmental restraint, which restrict a person’s free access to all parts of their environment, including items or activities’.
·Based on the limited information provided, it is not clear whether the requested supports described meet the definition of a regulated restrictive practice (environmental restraint) or whether they would be reasonable child safety and injury prevention practices for a child of 8 years of age.
·Child safety and injury prevention practices are age appropriate, in line with community standards and used irrespective of whether a child or young person has a disability to promote safety and wellbeing. Their use is not dependent on the presence of behaviours of concern. As such, child safety and injury prevention practices are not typically considered regulated restrictive practices and do not require reporting to the NDIS Commission.
·However, the continued use of child safety and injury prevention practices with older children and young people with disability may constitute a regulated restrictive practice in some circumstances. For example, when the practice impinges on the rights or freedoms of movement of a child or young person and is implemented, specifically in response to behaviours of concern, then this meets the definition of a restrictive practice under the NDIS Act.
[23] Ex 6.
Having considered the Commission’s response above, the Tribunal is not satisfied that the Commission has provided a definitive answer but has clearly stated that the “requested supports may meet the definition of a regulated restrictive practice under Part 1, Section 6(e) of the Rules that describe ‘environmental restraint’…”. However, the Tribunal gives some weight to the Commission’s preliminary view that the requested supports could potentially be regulated restrictive practices. What is evident from the Commission’s response is that more information is needed for a more conclusive assessment.
The Respondent relied on DFFG and National Disability Insurance Agency,[24] where the Tribunal concluded that a fence and gate constituted a restrictive practice because they restricted the 12-year-old applicant’s access to all parts of his environment. In that case, the Tribunal found that the requested fence and gate were not ‘childproofing’ because they were requested in response to a behaviour of concern and were not sought merely because of the applicant’s age.
[24] DFFG and National Disability Insurance Agency [2023] AATA 264 (30 January 2023).
The Respondent noted that in DFFG and National Disability Insurance Agency, the Agency had sought the view of the NDIS Quality and Safeguards Commission (the Commission) on whether the fence and gate would likely constitute a regulated restrictive practice, and the Commission concluded that they would. The Tribunal observed that while the Tribunal is not bound by the preliminary views of the Commission, the Tribunal noted that the Commission’s advice was useful.
The Tribunal acknowledges that as an independent decision maker, the Tribunal is not bound by decisions of other members of the Tribunal, however, the Tribunal is of the view that consistency in decision-making is important for a just and fair process. As such the Tribunal gives some weight to the findings in DFFG and National Disability Insurance Agency, concerning the height of the fence.
The Tribunal will now deal with the specific unresolved issues noted in the Table above.
Installation of a Perspex box around the television
The Applicant is seeking the installation of a Perspex box around the television to address potential risk to the Applicant and to reduce damage to the television, caused by the Applicant. Currently the television is protected by a temporary sheeting of plastic which is placed on top of the television. The Applicant’s father gave evidence that the plastic sheeting interferes with the clarity and viewing of the television.
The Applicant contends that the installation of a Perspex box around the television is not a restrictive practice, as the television is controlled by a remote. There is a quote from sealtv, dated 29 February 2024, for $2625.83. However, an itemised quote from Baini Group Pty Ltd dated 23 July 2024, provided post-hearing, refers to a total cost of $3500 plus GST, which includes installation.
There is support for this request. In an Interim Behaviour Support Plan from Mr DB, dated 30 June 2023[25] referring to damage to the television caused by the Applicant’s behaviour.[26] The Report does not include details of the proposed installation of a Perspex box around the television. There is a report[27] of Mr WB (OT), referring to an assessment of the Applicant on 23 August 2023.
[25] Ex 3, 188.
[26] EX 3, 195-200.
[27] Ex 3, 231-242.
Mr WB observed:
Perspex box for wall mounted TV: it is recommended that [Applicant] is granted funding to install a wall mounted Perspex to protect the TV. [Applicant] has a history of grabbing the TV mounted on the wall and pulling it off the wall. This is a significant risk of injury. The recommended Perspex box has nil grabbing surfaces and will protect the TV and eliminate the risk of injury to [Applicant]…[28]
[28] Ex 3, 238.
In its SFIC[29] and in closing submissions, the Respondent contented that the installation of a Perspex box around the television results in limited access by the Applicant to the television and is an environmental constraint, and as such is a restrictive practice.
[29] Ex 1, [6.11].
Given that the television is remotely controlled, the Tribunal is not satisfied on the evidence that the installation of a Perspex box around the television is a restrictive practice as defined in section 9 of the Act; the Tribunal is not satisfied that the installation of a Perspex box around the television is a practice or intervention that has the effect of restricting the rights of the Applicant. As the Applicant can still access the television by remote control, the Tribunal is not satisfied that installation of a Perspex box meets Rule 6(e) of the RPR; the Tribunal is not satisfied that the installation of a Perspex box “restrict[s] a person’s free access to all parts of their environment, including items or activities”. On balance, the Tribunal is satisfied that the installation of a Perspex box does not meet the definition in Rule 6 of a regulated restrictive practice as it does not involve an environmental restraint, which restricts the Applicant’s free access to all parts of his environment.
However, the Tribunal needs to consider whether the installation of a Perspex box around the television meets the requirements of subsection 34(1).
On the evidence, the Tribunal is not satisfied that funding for the installation of a Perspex box around the television will assist the Applicant to pursue any of his stated NDIS goals, and therefore subsection 34(1)(a) of the Act is not met. The Tribunal on the evidence is not satisfied that the funding will assist the Applicant to undertake activities so as to facilitate his social and economic participation, and therefore subsection 34(1)(b) of the Act is not met.
In relation to subsection 34(1)(c), there is no evidence that funding for the installation of a Perspex box around the television is a capacity building support for the Applicant and would, therefore, substantially improve the life stage outcomes for, and be of long-term benefit to, the Applicant (Rule 3.1(b) of the Rules), or that it will facilitate an increase in the Applicant’s independence and reduce the Applicant’s need for other kinds of supports (Rule 3.1(f) of the Rules).
As to value for money, although there is a quote, on the evidence, the Tribunal is not satisfied that the requested support represents value for money in that the cost of the support is reasonable, relative to the benefits to be achieved and the cost of alternative support. As such, the Tribunal finds that subsection 34(1)(c) of the Act is not met.
Moreover, on the evidence, the Tribunal is not satisfied that funding for the requested support will be, or is likely to be, effective and beneficial for the Applicant having regard to current good practice in accordance with subsection 34(1)(d) of the Act.
In relation to subsections 34(1)(e) and (f) and Rule 5.1(d), the Tribunal is satisfied that the requested support is a cost within the responsibility of the Applicant’s parents, and as such it is not most appropriately funded or provided by the NDIS. Therefore subsections 34(1)(e) and (f) of the Act and Rule 5.1(d) of the Rules are not met.
In essence and for the above reasons, the Tribunal finds that the installation of a Perspex box around the television is not a reasonable and necessary support for the purposes of subsections 33 and 34(1) of the Act.
Excavation of the concrete slab in the backyard and replacement with grass
The Applicant is requesting funding be included in his SOPS for the excavation of about 80 square meters of a concrete slab in the backyard, and the installation of grass to replace the slab. Post-hearing, the Applicant provided an itemised quote for $17,800 plus GST for the excavation, and $7,900 plus GST for the grass installation.
The Respondent contends that excavating a concrete slab and installing grass in an outdoor area, do not meet the requirements of subsection 34(1).
Ms CZ, (OT) provided a comprehensive report dated 25 January 2022[30] and she also gave evidence during the hearing. Ms CZ made the recommendation for the excavation of the concrete slab and grass installation in order to allow the Applicant to play outside on “appropriate play equipment and minimise the risk of injuries”.[31] Ms CZ observed that the Applicant’s family had expressed concerns about the safety of the Applicant playing on equipment on a concrete slab, as the Applicant seeks climbing activities with a risk of injury. Ms CZ also relied on photographs provided to her by the family.
[30] Ex 5, 23-36.
[31] Ex 5, 33.
Similarly, Emeritus Professor SE agreed that excavating a concrete slab and installing grass in an outdoor area “is appropriate if that is the best way to facilitate providing a safe play area which will provide the Applicant with physical stimulation and increase the likelihood of him sleeping well in a safe environment”.[32] However Emeritus Professor SE acknowledged that he is not a playground designer. He also noted that he does not know whether removing the concrete slab or covering the concrete over with some soft materials would be preferable.
[32] Ex 3, 289.
Further support for the excavation of the concrete slab comes from Ms AT, Proficient Behaviour Support Practitioner, who in a letter of 15 December 2023 recommended the removal of the slab for safety reasons.[33]
[33] Ex 3, 265.
There were extensive discussions about this issue in the course of the hearing. The Applicant’s father gave evidence that although a written quote has not been provided, the family did explore the option of covering the concrete over with soft materials but the cost was commensurate with that of the excavation of the concrete slab, due to the need for installation of filtration materials. In post-hearing submissions, the Respondent expressed concerns about the post-hearing quote provided, and contended that there “remains no probative evidence before the Tribunal that more cost effective alternatives have been considered.” The Tribunal has given regard to the evidence of the family about the consideration of other options, however, without an actual quote, the Tribunal is persuaded by the Respondent’s submissions. On the available material, the Tribunal is not satisfied that more cost-effective alternatives have been considered.
Subsection 34(1)(a)
In relation to subsection 34(1)(a), the Respondent accepted and the Tribunal finds that excavating a concrete slab and installing grass in an outdoor area, provided that the Applicant is playing with appropriate equipment in that area, will assist the Applicant to pursue his stated NDIS goal ‘to improve gross motor and fine motor skills’, and that it might assist the Applicant to pursue his play skills, which form a part of his stated NDIS goals. In those circumstances, the Tribunal finds that subsection 34(1)(a) of the Act is met.
Subsection 34(1)(b)
Emeritus Professor SE observed that the Applicant could play in a playground protected by a childproof fence. The Tribunal notes that the garage has been converted into a sensory playroom which the Applicant could access to meet his needs.
The Respondent contended that excavating a concrete slab and installing grass in an outdoor area will not assist the Applicant to undertake activities so as to facilitate his social and economic participation.
The Tribunal is satisfied that the provided support worker assistance could be used to access the community, including to visit playgrounds with equipment, and meet the Applicant’s physical stimulation needs. The support worker assistance would benefit the Applicant as it would increase his social participation and assist him to pursue his stated goal of ‘to improve social and play skills’.
In essence, the Tribunal is not satisfied that the requested support would assist the Applicant to undertake activities so as to facilitate his social and economic participation. Therefore subsection 34(1)(b) of the Act is not met.
Subsection 34(1)(c)
Emeritus Professor SE noted that consideration could be given to covering the concrete with a soft materials.
It is difficult to see why approximately 80 square meters need to be excavated, rather than a smaller portion of the concrete slab. The Tribunal is persuaded by the Respondent’s closing submissions that this level of excavation appears to be excessive and goes beyond what might be required. Although the Tribunal acknowledges that having soft materials in the backyard could be beneficial in that it could give the Applicant another option to play, as mentioned above, without a written quote, the Tribunal is not satisfied that lower cost alternatives have been considered. Based on the available material, it is difficult to see why applying a soft material, such as rubber or artificial turf, or excavating a smaller portion would not be suitable at a lower cost alternative.
The proposed cost is substantial - it is close to $30,000. Based on the available information, the Tribunal is not satisfied that the requested supports represent value for money, or that the cost is reasonable, relative to the benefits that could be achieved.
Therefore, the Tribunal is not satisfied that subsection 34(1)(c) of the Act is met.
Subsection 34(1)(d)
Emeritus Professor SE gave evidence confirming his observations in his report that removal of the concrete slab is a sensible idea to reduce the risk of injury to the Applicant. However, he did acknowledge the limitations of his observations in that garden design is not his area of expertise. Ms CZ recommended the excavation of the concrete slab and its replacement with grass.
As mentioned above, the Tribunal acknowledges that replacing the concrete slab with soft materials could give the Applicant another option to play, however based on the available material, the Tribunal is not satisfied that excavating a concrete slab and installing grass in in the backyard will be, or is likely to be, effective and beneficial for the Applicant having regard to current good practice.
Therefore, the Tribunal is not satisfied that subsection 34(1)(d) of the Act is met.
Subsections 34(1)(e) and (f) and Rule 5.1(b)
The Respondent has contended that excavating a concrete slab and installing grass in an outdoor area is the responsibility of the Applicant’s parents. The Respondent argued that the Applicant’s parents have other young children, who may all enjoy the use of a grassed area to play on.
Without sounding harsh, the Tribunal is persuaded by the Respondent’s submissions that it is the responsibility of the Applicant’s parents to provide the Applicant with a safe and adequate environment to play in, regardless of his disability, and as such excavating a concrete slab and installing grass in the backyard is not most appropriately funded, or provided by the NDIS.
As such the Tribunal is not satisfied that subsections 34(1)(e) and (f) of the Act and Rule 5.1(b) of the Rules are met.
In conclusion, the Tribunal is not satisfied that the requested supports of excavating a concrete slab and installing grass in the backyard are reasonable and necessary supports. Therefore, the Tribunal finds that subsection 34(1) of the Act is not met.
Installation of play equipment on the grass in the backyard
The Applicant is requesting funding for a sensory playground to be installed in the backyard.
In his report[34] Mr WB recommended the following:
Sensory playground installation (Supply and fit). It is recommended that a Kingston Cubby House is installed in the backyard to help [Applicant] with sensory regulation. This type of equipment is highly effective for [Applicant] at school and in the community. This modification to the home environment will help [Applicant] cope with his disability needs and improve his quality of life.[35]
[34] Ex 3, 231-242.
[35] Ex 3, 238.
Ms CZ also expressed support for the play equipment to enable the Applicant to continue engaging in gross motor activities in a safe manner.[36] Her recommendation is linked to the requested support of excavation of the concrete slab and replacement with grass.[37] In evidence, Ms CZ was not specific about the kind of equipment but suggested that equipment of interest to the Applicant could be suitable, such as swings, rocking and climbing equipment. Ms CZ noted the equipment could encourage self-regulation.
[36] Ex 5, 28.
[37] Ex 5, 33.
Emeritus Professor SE supported the recommendation for the enhanced play equipment.[38] In oral evidence, Emeritus Professor SE noted that the play equipment at home would contain the motivation to climb over the fence.
[38] Ex 3, 284.
Post-hearing, the Tribunal received from the Applicant a quote dated 26 February 2024 from KIDSPACE Playgrounds with Purpose P/L for $10,502.80 to cover the cost of supply and installation of a Pod Single Rotating and Matrix Rope Net Climber. In post-hearing submissions, the Respondent raised concerns about the quote, noting that despite its date, it was not provided until after the hearing. The Tribunal has not drawn any adverse inferences on that basis.
The Tribunal observes that Mr WB recommended a cubby house but the quote is for other equipment. In this regard, the Tribunal is persuaded by the Respondent’s submissions post-hearing that there does not appear to have been any consultation with a relevant health professional about the appropriateness of the equipment referred to in the quote.
Subsection 34(1)(a)
The Tribunal is satisfied on the evidence, and the Respondent accepts that installing appropriate play equipment will assist the Applicant to pursue his stated NDIS goal of ‘to improve gross motor and fine motor skills’, and to pursue his play skills, which form a part of his stated NDIS goals.
Therefore, the Tribunal finds that subsection 34(1)(a) of the Act is met.
Subsection 34(1)(b)
The Applicant’s plan includes the provision of support worker assistance for community participation. The Tribunal is persuaded by the Respondent’s submissions that this time could be used to access the community, including to visit playgrounds with equipment to play on, and meet the Applicant’s physical stimulation needs. Moreover, the Tribunal is satisfied that the support worker assistance will benefit the Applicant as it will increase his social participation and assist him to pursue his stated goal of ‘to improve social and play skills’. This is also supported by Emeritus Professor SE who considered that the Applicant could play in a playground protected by a childproof fence.
It is also noteworthy that the garage of the Applicant’s home was converted into a sensory playroom for the Applicant to meet his play and physical stimulation needs.
The Tribunal is satisfied on the evidence that installing play equipment in the backyard will not assist the Applicant to undertake activities so as to facilitate his social and economic participation and therefore subsection 34(1)(b) of the Act is not met.
Subsection 34(1)(c)
The Tribunal accepts that the play equipment is effective for the Applicant in his school and that it may assist him to cope with his disability needs and improve his quality of life, but as argued by the Respondent, similar benefits could be obtained through the use of the existing sensory room set up for the Applicant within the converted garage or by accessing the community and the local playgrounds. In those circumstances, the Tribunal is not satisfied that the requested support represents value for money in that the cost is reasonable, relative to the benefits to be achieved and the cost of alternative support.
Therefore, the Tribunal finds that subsection 34(1)(c) of the Act is not met.
Subsection 34(1)(d)
In his report, Mr WB observed that the play equipment such as a cubby house is effective for the Applicant in his school and the community and that it may assist the Applicant to cope with his disability needs and improve his quality of life.[39]
[39] Ex 3, 238.
However and as the Respondent contends the same benefit could be obtained through the use of the existing sensory room set up for the Applicant within the converted garage or by accessing the community and local playgrounds.
Therefore, the Tribunal finds that subsection 34(1)(d) of the Act is not met.
Subsections 34(1)(e) and (f) and Rule 5.1(b)
The Tribunal is persuaded by the Respondent’s contentions that installation of play equipment in an outdoor area is the responsibility of the Applicant’s parents, and that it is not specifically related to the Applicant’s disability, noting the Applicant’s parents have other young children, who may all enjoy the use of play equipment. The Tribunal further accepts that it is the responsibility of the Applicant’s parents to provide the Applicant with a safe and adequate environment to play in, regardless of his disability. As such, the installation of play equipment is not most appropriately funded or provided by the NDIS. Therefore, subsections 34(1)(e) and (f) of the Act and Rule 5.1(b) of the Rules are not met.
In summary and for the stated reasons, the Tribunal finds that the installation of play equipment is not a reasonable and necessary support for the purposes of subsections 33 and 34(1) of the Act or the Rules.
Removal of planter boxes and raising the height of the existing fence
The removal of the planter box is directly linked to the request to raise the height of the existing fence. The Applicant’s parents expressed concerns for the Applicant in case he climbs over the existing fence. They indicated that they live on a busy road which raises safety issues, as well as the risk of falling, increasing the Applicant’s chances of injury. The Tribunal acknowledges that those are legitimate concerns.
Mr WB observed that the Applicant has the capacity to climb over the fence which is about 1.8 metres, and to abscond.[40] He recommended an increase in the fence height to 2.4 meters. The recommendation to increase the fence height of the fence has been supported by other practitioners, including Emeritus Professor SE and Ms CZ. Post-hearing, the Applicant provided an itemised quote for $17,200 plus GST for the removal and installation of the higher fence.
[40] Ex 3, 238.
The Respondent contends that increasing the height of the fence is a restrictive practice, which has not been authorised in accordance with the RPA in NSW.
The Tribunal is satisfied that increasing the height of the fence is a restrictive practice as defined in section 9 of the Act and Rule 6(e) of the RPR, in that it is a practice or intervention that has the effect of restricting the Applicant’s rights or freedom of movement. The Tribunal finds that increasing the height of the fence restricts the Applicant’s free access to all parts of his environment and consistent with r 6, it is a regulated restrictive practice as it involves seclusion of the Applicant in a physical space. The Tribunal is not satisfied on the evidence that it is a last resort that could justify its use.
Furthermore and although the Tribunal accepts that increasing the height of the fence may reduce the risk of harm to the Applicant by making it more difficult for him to abscond onto the road, it is unclear as to whether the restrictive practice would be used for the shortest possible time to ensure the Applicant’s safety when the fence is arguably a permanent home modification, in a property that is not owned by the family but by a relative. The Tribunal notes that the Applicant’s father gave evidence that the house is owned by his sister who has consented to the requested modification. What is unclear is whether Council approval would be required to increase the height of the fence.
Importantly and as required, the use of the proposed restrictive practice had not been authorised in NSW. As noted above, the RPR states that an unauthorised use of a restrictive practice is prohibited and an NDIS provider’s registration is subject to the requirements that the provider must not use a restrictive practice which has been prohibited, consistent with Rule 8 of the RPR.
Rule 5.3(1) provides that a support will not be funded if the provision of the support would be contrary to a law of the Commonwealth, or of the State or territory in which the support would be provided.
On the evidence, and until such a time as the RPA process has been completed and the Restrictive Practices Rules have been met, including the requirement for the development of an interim or comprehensive behaviour support plan, this request cannot be supported.
In those circumstances, the Tribunal finds that the Respondent cannot fund the proposed restrictive practice because to do so would be contrary to subsection 33(5)(d) of the Act, which provides that the Rules must be applied when deciding whether or not to approve a SOPS.
In light of the above, the Tribunal does not consider it necessary or appropriate to consider whether this request meets subsections 33 and 34(1).
CONCLUSION
Having regard to the evidence independently and cumulatively, the Tribunal finds that none of the issues in dispute meets the legislative and/or policy requirements warranting funding under the Scheme.
The Tribunal is satisfied on the evidence that the correct and preferable decision is to affirm the decision under review.
DECISION
The Tribunal affirms the decision under review.
122. I certify that the preceding 121 (one hundred and twenty-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President A Younes.
...................................[SGD].....................................
Associate
Dated: 15 August 2024
Date(s) of hearing: 22 - 23 July 2024
For the Applicant: Parents of RKKR Counsel for the Respondent: Mr M Nesbeth Solicitors for the Respondent: Ms M Macor, NDIA
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