Ryan and National Disability Insurance Agency

Ryan and National Disability Insurance Agency [2024] AATA 310 (29 February 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2021/6684
Re:Faith Ryan
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Senior Member K Buxton
Date:29 February 2024
Place:Brisbane

The decision under review is set aside and the decision is remitted for reconsideration with a direction that the Applicant’s approved statement of participant supports specifies:
a)From the date of this decision, funding for access to swimming and group exercise, of $1176 per year, or $22.62 per week; and
b)That the reasonable and necessary supports otherwise specified be replicated until the reassessment date of 16 February 2025.

....................................[SGD]....................................
Senior Member K Buxton
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME - application for a review of a reviewable decision - participant supports - review of supports in plan - whether particular supports are reasonable and necessary within the meaning of section 34 of the National Disability Insurance Scheme Act 2013 (Cth) - whether the supports represent value for money - whether the supports are effective and beneficial for the Applicant – whether the supports are related to disability – decision under review (as remade following remittal) affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Plan Management) Rules 2013 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
Cases
BIJD and National Disability Insurance Agency [2018] AATA 2971
McGarrigle v National Disability and Insurance Agency [2017] FCA 308
National Disability Insurance Agency v KKTB [2022] FCAFC 181
National Disability Insurance Scheme v WRMF [2020] FCAFCA 79
QDKH by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189
REASONS FOR DECISION
Senior Member K Buxton
29 February 2024
BACKGROUND

The Applicant, a 41-year-old woman, has been a participant in the National Disability Insurance Scheme (“NDIS”) since April 2021. She has sought review of decision by a delegate of the Chief Executive Officer (“CEO”) of the National Disability Insurance Agency (“the Respondent”) dated 20 August 2021 (“the internal review decision”) made pursuant to subsection 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) (“the Act”)[1].
[1] T4-7.
The Applicant has been diagnosed with Post-Traumatic Stress Disorder (PTSD), persistent depressive disorder, suffers from psychosocial dysfunction in social interaction (the PTSD and depression affecting the Applicant’s ability and confidence in making and maintaining relationships) and mobility (in her ability to use public transport, as those conditions affect her confidence and contribute to increased anxiety due to being in situations with strangers and noises).
The Applicant’s statement of participant supports (“SOPS”) was approved on 3 June 2021 for a 14-month period to 3 August 2021.[2] The Plan provided total funded supports of $38,161.58, comprising: core supports (including transport) in the amount of $16,788.20 and capacity building supports in the amount of $21,373.38.
[2] T6.
On 19 August 2021, the Applicant requested internal review of the decision to approve the statement of participant supports in her plan. On 20 August 2021 an internal reviewer decided that the original decision was correct. On 8 September 2021 the Applicant applied to the Tribunal for review of that decision.
Since then, the decision has been remitted a number of times under section 42D of the AAT Act. A decision dated 26 June 2023, made following remittal, provided for an updated reassessment date of 25 December 2023 and further approved funding for a six-month period totalling $17,714.57, being $7,859.42 in core supports (including transport) and $9,855.15 in capacity building supports. Whilst the number of support worker hours were not specified, an amount equivalent to just over $10,000 per annum was made available to the Applicant for community, social and recreational activities and this could be used flexibly.
A hearing of the review application was conducted by the Tribunal via video-link using Microsoft Teams on 27 September 2023, 29 November 2023, 6 December 2023 and 9 February 2024 in order to allow for witness availability. Written submissions were provided by the parties before, during and after this process. In arriving at its decision, the Tribunal has considered these together with the tendered documents and the oral evidence given at the hearing. The Tribunal is satisfied that the relevant material before the Tribunal has been considered and that the parties have each had an opportunity to draw the Tribunal’s attention to any parts of that material on which they wished to rely.
At the conclusion of the hearing, the Respondent invited the Tribunal to again remit the decision for reconsideration as it was satisfied that additional supports were reasonable and necessary. A decision dated 16 February 2024, made following remittal, provided for an updated reassessment date of 16 February 2025 and replicated the previous funded supports. In addition, the decision approved further funding to allow for:
(a) An increase to the core supports budget to allow for a total of 30 hours of support worker assistance per week;
(b) Sufficient funding to allow the Applicant to access swimming and group exercise classes; and
(c) Level 3 Transport.
The Applicant has not withdrawn the Application, which is now taken to be for review of the decision made on 16 February 2024 following remittal the latest remittal.[3]
[3] AAT Act section 42D(4).
ISSUES FOR DETERMINATION
The issues explored by the Tribunal during the hearing were whether three supports, for which funding had not been included in the original reviewable decision, should be specified in the Applicant’s approved statement of participants supports on the basis that they are reasonable and necessary in accordance with section 34 of the NDIS Act. The three supports identified by the Applicant, and which, she contended, ought to be specified in the statement of participant supports as reasonable and necessary supports to be funded in her plan, were:
(a)Membership to a local Leisure Centre to allow her to access swimming and group exercise;
(b)39 hours of massage therapy; and
(c)50 hours per week of support worker assistance.
As the reviewable decision made after the hearing includes funding for swimming and group exercise classes and 30 hours of support work assistance (together with increased transport funding) these issues are no longer controversial. However, the Applicant maintained that the correct or preferable decision in this case was that she also be provided with funds in her plan for:
(a)A further 20 hours per week of support worker assistance (in addition to the 30 hours per week now funded); and
(b)39 hours of massage therapy.
The Respondent submitted that the Tribunal should affirm the decision under review as the additional supports, being support worker hours in excess of 30 hours per week and 39 hours of massage therapy per annum were not reasonable and necessary supports to be funded under the NDIS. These are the controversial issues before the Tribunal in this review of the decision to approve the Applicants statement of participant supports.
Chapter Three of the NDIS Act deals with individual plans under which reasonable and necessary supports will be funded for participants in the scheme. Subsection 31(1) of the NDIS Act sets out the principles relating to the preparation, review and replacement of a participant’s plan. These principles are generally reflective of the General Principles set out in section 4 and expressly include, amongst other things, that these processes should:
(a) Be individualised;
(b) Be directed by the participants; and
(c) Facilitate tailored and flexible responses to the individual goals and needs of the participant.
In order to determine whether a support should be included in the statement of participant supports approved in the Applicant’s plan under subsection 33(2) of the NDIS Act, the Tribunal must have regard to the matters set out in subsection 33(5) of the NDIS Act and determine whether it is satisfied that the support is a “reasonable and necessary support” in accordance with the criteria in subsection 34(1) of the NDIS Act. The Tribunal is to be positively satisfied that the criteria have all been met in order to approve that disputed support for inclusion in the Applicant’s statement of participant supports.[4] Each of the following criteria for supports, set out in subsection 34(1) of the NDIS Act, must be satisfied in order for a support to be funded:
[4] BIJD and National Disability Insurance Agency [2018] AATA 2971, at [50].
(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.
The word “reasonable” is informed by the criteria set out in subsection 34(1) of the NDIS Act, although its meaning is not exhausted by these factors. In relation to how the CEO’s function works in practice, Mortimer J said in McGarrigle v National Disability and Insurance Agency (“McGarrigle”) [5]:
…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 he or she is satisfied that support, as identified, is reasonable and necessary for that particular participant.
[5] McGarrigle v National Disability and Insurance Agency [2017] FCA 308, at [93].
Subsection 33(5)(d) of the NDIS Act requires the CEO to have regard to any criteria prescribed by the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (‘the Rules’) in relation to the manner in which the reasonable and necessary supports will be funded. The Rules made pursuant to subsections 34(2) and 35(1) of the NDIS Act provide further guidance with respect to the assessment of reasonable and necessary supports that will be funded. Pursuant to section 209 of the NDIS Act, the Rules are a legislative instrument and therefore have statutory force. In this case the relevant provisions are included within parts three and five of the Rules:
Value for money
3.1   In deciding whether the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support, the CEO is to consider the following matters:
(a)whether there are comparable supports which would achieve the same outcome at a substantially lower cost;
(b)whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long‑term benefit to, the participant;
(c)whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);
(d)for supports that involve the provision of equipment or modifications:
(i)the comparative cost of purchasing or leasing the equipment or modifications; and
(ii)whether there are any expected changes in technology or the participant’s circumstances in the short term that would make it inappropriate to fund the equipment or modifications;
(e)whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides;
(f)whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of supports (for example, some home modifications may reduce a participant’s need for home care).
General criteria for supports
5.1     A 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.
It is a matter for the Tribunal to consider the evidence available at the time of hearing and determine, afresh, whether the statement of participant supports in the reviewable decision specifies the reasonable and necessary supports. The Full Federal Court in QDKH by his litigation representative BGJF v National Disability Insurance Agency[6] described the preparation of a statement of participant supports as; “a collaborative process: the CEO is required to “facilitate” the preparation of a participants plan (s.32(1)) and to prepare the SOPS “with” the participant (s.33(2)).” The Full Court noted that the Tribunal’s jurisdiction is governed by subsection 25(1) of the AAT Act read together with section 103 of the NDIS Act. The CEO is to then “approve” the SOPS. The Tribunal is to conduct the review on a de-novo basis and reconsider the supports that are to be specified as funded supports in the Applicant’s statement of participant supports.
[6] QDKH by his litigation representative BGJF v National Disability Insurance Agency[2021] FCAFC 189, at [10(d)].
The Applicant raised a further issue with the form of the reconsidered decision and, in particular, various errors contained in the text of the decision and in the Applicant’s goals. This review is limited in scope to a reconsideration of the decision made, under section 33(2) of the NDIS Act. The content of a participant’s statement of goals and aspirations, including the Applicant’s environmental and personal context and the goals themselves, are defined by section 33(1) of the NDIS Act. A participant may update their statement of goals at any time. It is not part of the Tribunal’s jurisdiction to reconsider the Applicants statement of goals. Where the stated goals in the Applicant’s plans are unclear, the Tribunal has had regard to both what is written in the plan and to the Applicant’s own evidence, including as to her lived experience where it has been necessary to have regard to the statement for the purpose of reviewing the section 33(2) statement. The Tribunal is satisfied that the issues raised by the Applicant in respect to the erroneous recording of information by the Respondent in her plans are appropriately to be addressed between the parties and not by the Tribunal.
EVIDENCE
The Applicant’s participant plan, approved in June 2021, lists the following goals:
Short-term Goals:
To be supported to continue my TAFE course and the placement my course requires
To develop the skills and capacity to maintain my mental and physical health to live independently
Medium or long-term goals:
I would like to seek and maintain affordable independent housing
I would like to develop my driving skills to obtain my P Plates
I would like to develop my social skills and capacity to confidently engage with new people and group situations so that I can pursue new interests and widen my social network
In her statement of lived experience, dated 12 December 2022, the Applicant provided the following information:[7]
I suffer from complex PTSD. It affects everything, including how sensitive I am to the temperature, sharp lights, noises, and my sense of smell. It also impacts my ability to focus and my sleeping patterns. A good way to describe it is that it often feels like I have a washing machine going in my head.
I currently receive support through an NDIS package and am seeking a review to include support to access regular swimming, as this is a crucial part of how I manage the impacts of complex PTSD. The inclusion of support to access regular swimming would greatly help me to achieve the central goal of my NDIS plan, which is to be able to manage my mental and physical wellbeing.
I like to go swimming in the evening. This helps me to let go of things at the end of the day and release a lot of the anxious energy I carry as part of my condition. When I am in the water, I feel safe and secure, and this is the only time of day where I feel calm in my soul. Swimming also greatly improves my ability to sleep through the night, which is generally difficult due to the anxiety and recurring nightmares that I experience as part of PTSD. On days when I am unable to go swimming, I find it more difficult to function. I can feel the anxiety building up in me, and without the release that swimming provides me with, it is difficult for me to concentrate on day-to-day tasks and to get to sleep at night.
I have tried other forms of exercise in the hopes that they would benefit my physical and mental wellbeing. I have tried cycling regularly, going for walks, group fitness classes at the Diamond Creek Community Centre, and participated in the Eltham walking group. Unfortunately, none of these activities provided me with the same benefits as swimming.
I have also tried Exposure Therapy, Cognitive Behavioural Therapy, and Dialectical Behaviour Therapy, and none of these therapies have worked in alleviating the symptoms of my condition.
[7] HB p.138.
The Applicant provided further information about her lived experience in the form of answers to questions put to her by the Respondent. As to how her requests relate to her disability, she stated:[8]
The need for a gym membership arises due to my long-term disability, specifically I experience the following impairments, activity limitations and participation restrictions: reduced concentration; anxiety; reduced capacity to manage my stress load; poor sleep; reduced ability to cope with time pressures and multiple tasks; reduced stamina to complete tasks; reduced capacity to interact with others; social isolation.
In the past, I have found participation in swimming, group fitness classes and gym extremely helpful in reducing the long-term effects of my disability. Specifically, I find that swimming and participating in exercise helps me to self-regulate my stress responses and maintain my mental and physical health. Furthermore, I have found the social environment of the Recreation & Aquatic Centre enormously beneficial as it affords me opportunities to interact engage with people. I have noticed through regular swimming and participation in exercise classes that I am better able to concentrate and cope with time pressures and multiple tasks.
[8] HB, p.136.

The Applicant gave sworn evidence during the hearing. She has relocated and the closest leisure centre or gymnasium to her home was now the Thomastown Aquatic and Leisure Centre. She accepted the publicly available information provided by the Respondent during the hearing to the effect that the membership fee of $21.70 per week would allow her to access a level of swimming and group exercise classes that reflected her reasonable and necessary support needs.
As to the disability-related functional outcomes the Applicant believes will be provided, or that she has experienced, from Leisure Centre Membership (for example, how this assists her in living with her psychosocial disability), the Applicant stated that this support would:
(a) Improve her capacity to concentrate through participation in aerobic exercise, including swimming.
(b) Through regular participation in aerobic exercise, including swimming, improve her stamina to complete domestic tasks.
(c) Lead to better handling of stress load through increased exercise-induced blood circulation to her brain. This will assist to better cope with time pressures and participation in carrying out her daily routine.
(d) Improve mood, sense of wellbeing and sleep.
The Applicant described broader disability-related benefits that this therapy will provide as to:
(a) Reduce feelings of loneliness and isolation, put her in touch with other people, increase social relationships and better participate in community life.
(b) Increase her self-esteem and improve interpersonal interactions and relationships.
(c) Increase her potential to participate in economic life though improved capacity to handle stress and social relationships.
By way of explanation as to why alternate lower-cost therapies would not be appropriate, the Applicant stated:
An individual exercise, or a home exercise program prepared by an exercise physiologist would not be effective in helping me manage my psychosocial disability goals, given the social dimensions of a Recreation & Aquatic Centre e.g., group exercise, gym etc. Furthermore, access to a swimming pool is crucial, given the available evidence that swimming has been proved to reduce stress/ anxiety as well as depression. Additionally, Eltham Leisure Centre offer a comprehensive range of programs to help me achieve my goals including group fitness, Yoga and Pilates with regular monitoring and input from a qualified trainer.
The Applicant further stated that she had previously trialled a range of different treatments which were unsuccessful in improving her functional capacity, for example: Eye Movement, Desensitization and Reprocessing (EMDR) and Cognitive Behaviour Therapy (CBT).
The Applicant further submitted that:
(a) regular forms of exercise did not help her with the impact of trauma, whereas swimming specifically does help regulate the impact of trauma;
(b) swimming is not a regular day-to-day living expense, but is an expense that is directly related to her psychosocial disability; and
(c) swimming regulates the impact of the Applicant’s trauma as described in her Lived Experience statement.
The Applicant invited the Tribunal to conclude that she required 39 hours of massage therapy a year on the basis that massage therapy regulates the impact of her trauma. She stated at the conclusion of the hearing that this remained a support from which she would benefit.
The Applicant invited the Tribunal to conclude that she required a total of 50 hours per week of core funding for support workers to assist her in managing the impact of her trauma, and provided the following written information about this support:
Due to my trauma, I find public transport extremely triggering. Support workers allow me to access and to engage with the community by providing transport by car which is emotionally and mentally safe for me. I have to attend a large amount of appointments which I wouldn’t be able to attend if I had to rely on public transport. Before my NDIS package, people would give me money for an uber as I could not take public transport. I lost friendships over money. The only reason I needed extra money was for transport. The loss of friendships was a direct result of that and negatively affected both my mental health as well as my social support network.
During the hearing the Applicant gave the following evidence:
a)The Applicant provided an additional statement dated 1 October 2023 which demonstrates her lack of informal supports based on issues with her mother.
b)She emphasised that, before her previous funding was exhausted, she had experienced what it was like to have adequate support, particularly from support workers, and it is a matter for the Tribunal to determine whether she is to have that level of support in her plan again. Support with NDIS funding assisted her to develop healthy boundaries with abusive people and access to broader community supports. The Applicant described it as a “miracle” that she secured a job in June 2023 and that she was managing to hold it down and attributed this in part to an increase in support worker assistance.
c)When using public transport the Applicant’s workplace is one hour and 45 minutes away, in each direction. As a result, the Applicant cannot swim every day because of time taken to walk to the train etc. She has not been able to locate a job closer to home and does not currently have a car or a driver’s licence. Support workers have supported her by driving to work and the Applicant stated that this support is connected to her economic participation as the Applicant takes melatonin to assist with sleep but continues to have disturbed sleep as a result of waking from nightmares. Support workers would come in the morning and help to get back to reality and in a safe space, and help with tasks such as changing the sheets, get ready for work, talk to her and find ways to assist her to start the day and drive her to work, which are the kinds of things that families or informal supports would do if available. The Applicant explained that support workers assist with the creation of lists of bills to pay and tasks to undertake and will support and encourage her to attend to these tasks while she completes them. She is also supported to tidy and to undertake tasks requiring planning such as purchasing and cooking food, including in batches to save time and to be able to access food at other times when she lacks motivation. A support worker calmly suggests that the applicant takes breaks when finding tasks frustrating or overwhelming and re-directs her.
d)The Applicant stated that she had been given a number of grace periods and extensions of time after commencing work with children within which to complete the requisite certificate course in education support. The Applicant stated that she was intelligent enough to do so but, due to her trauma, lacked the courage and confidence to do so without support. She stated that she has attempted to complete the course over a period 9 years but setbacks and trauma prevented her from doing so alone. She stated that a support worker would assist her to manage concentration and study breaks, support her with asking questions and typing and likened the process to online education support.
e)The Applicant explained that she had calculated 50 as the number of support worker hours she needed each week by calculating how many hours of support worker assistance she had been receiving at a time when she was undertaking her first aid study prior to commencing work and had access to additional funded supports. As she benefitted from 50 hours per week, the Applicant stated that it followed that this was what she needed until her course was completed. She then stated that she would need this level of support whilst learning to drive, which takes six months in Victoria.
The Applicant stated that she did not consider that her requirement for support workers would be lifelong but stated that she needed medium term support for about 12 months with gradual changes to the support after that.
During the hearing, after the Respondent had indicated that the Applicant would be provided with level 3 Transport funding as part of her ongoing funded supports, the Applicant stated that this would provide about $120 per fortnight which was insufficient to meet her transport needs in full. The Applicant stated that she utilised support workers to drive her to and from work and to drop her to the swimming pool. She had previously given evidence that she had taken public transport to work on some occasions but that this affected her capacity to access the swimming pool because of the length of time for the journey. She stated that she would sometimes run late for work due to her mental health issues affecting her and would not be able to arrive at the train station on time. In those instances, the Applicant stated that she sometimes travelled to and from work by taxis and Ubers (which took about 20 to 25 minutes each way, depending on traffic).
At the conclusion of the hearing the Applicant lodged an undated written statement relating to her request for support to learn to drive. She stated that this was a goal in her original NDIS Plan and that she had not been supported as a young adult by her family to learn to drive. She stated that catching public transport after dark was dangerous and stated that she had experienced traumatic experiences on public transport in the past. The Applicant did not specifically state the type of support she was seeking, but stated during the hearing that she could not afford to pay for driving lessons. She stated that driving would likely improve her independence and self-esteem.
Dr Jagadheesan, Psychiastrist, prepared letters dated 8 November 2021[9], 7 March 2022[10] and 1 July 2023.[11] Dr Jagaheesan, in his later letter (with which the first is consistent), stated that “regular exercise will be beneficial in improving PTSD and associated psychosocial dysfunction”. However, whilst he did not state that such regular exercise be in any particular form, or at any particular place, in his earlier letter he “highly recommended” swimming as very beneficial for both mental and physical health and that “research shows that regular physical forms of aerobic activities can be effective in reducing depression and anxiety.” He also noted in that letter that he had observed the Applicant to show “improved functioning, confidence and improved psychiatric and pain symptoms” when she was swimming and attending group fitness classes.
[9] HB, p.128.
[10] HB, p.130.
[11] HB, p.269.
During the hearing, Dr Jagadheesan commented on the following issues:
(a) As to the Applicant’s evidence that regular forms of exercise did not help her with the impact of trauma, whereas swimming specifically does help regulate the impact of trauma, he stated that the benefits of swimming included that it was much more neutral to the spine than other exercises and had sensory benefits to regulation of skin sensitivity.
(b) Consistent with his letter dated 8 November 2021 the applicant experiences these symptoms, but also experiences chronic pain symptoms. The chronic pain condition is related to the psychiatric disorder, and physical symptoms can worsen if psychiatric conditions are not adequately treated.
(c) He further stated that treatment to reduce symptoms of anxiety and PTSD and to act on pain includes avenues other than medication, and that exercise is well-known to assist in the treatment of depression. He stated that he was unsure what activities other than swimming could be regularly undertaken as the Applicant has a pain disorder from back pain and swimming was low impact on the lower spine unlike, for example, bike riding.
(d) He stated that the Applicant had experienced over twenty years of PTSD symptoms, together with persistent depressive disorder. Both PTSD and depressive symptoms affected the Applicant’s ability to make social connections and use public transport.
As to the issue of massage therapy, Dr Jagadheesan agreed that massage was not part of a recognized treatment program for mental health issues and depressive disorders. However, as the Applicant had an underlying pain condition, he did not accept that the benefit of massage therapy for the Applicant would be limited to the same general improvement in wellbeing that any adult would achieve. He stated that not everyone has the physical factors in combination with her PTSD. He stated that the Applicant had treatment-resistant PTSD and he was therefore looking for options beyond standard medications and, having regard to her pain condition, that co-existing medical condition that has a correlating effect.
As to recommendations for support of the Applicant going forward Dr Jagadheesan stated, consistently with his 1 July 2023 letter, that the Applicant required some community support to allow her to grow more confidence such as having a support worker from NDIS to allow her to set and achieve goals on a day- to-day basis and assist her to do things that will improve her physical and mental wellbeing. When she had had a supportive relationship with an NDIS support worker it made a huge difference to her. He stated that her part-time work in after school care was positive for the Applicant. The Applicant finds it difficult to use public transport to travel as she reacts to strangers and noises. Dr Jagadheesan accepted that exposure therapy can assist with these symptoms but only when done supportively. He stated that a support worker can assist the Applicant by providing psychological support to allow her to develop her potential and facilitate contact with others on a day-to-day basis and that functions may include cooking, driving or more specialised care from someone with a trauma background.
Dr Ahmed, psychiatrist, prepared a report dated 12 October 2022[12] at the instigation of the Respondent, after reviewing the T documents and various reports. He stated that, for treating PTSD and persistent depressive disorder, “exposure therapies are appropriate. There are a whole range of exposure therapies such as going to the shops, social events or going for walks”, and “any range of exercise is appropriate, not least just going for walks”. He noted that exercise was not evidence-based treatment but was, instead, part of a healthy lifestyle. Dr Ahmed stated that there was “no available evidence suggesting massage therapy is an evidence-based treatment for Post-Traumatic Stress Disorder or Persistent Depressive Disorder.” The effect of his evidence was that massage was a pleasant and positive experience but was not an evidence-based treatment for a depressive illness.
[12] HB, p.193.
Dr Ahmed gave evidence during the hearing as follows:
a)He has approaching 15 years’ experience giving evidence about PTSD. He was familiar with a variety of recommendations for treatment of adults with PTSD. He stated that front line treatment was evidence based and comprised exposure therapy, medication, cognitive behaviour therapy and EMDR (rapid eye desensitization).
b)Dr Ahmed described other psychological or non-pharmaceutical treatments as parallel or secondary treatment which were not necessarily evidence based.
c)He stated that remedial and myotherapy massage are not recommended as they are not a front line or evidence-based treatment. These were “positive” and “a pleasurable lifestyle addition” but there was insufficient evidence-based information to show how these might be used, how they work and whether these would modify the trajectory of PTSD. He accepted that massage may temporarily lower cortisol and muscle tension but that it was not an evidence-based treatment for PTSD.
d)Dr Ahmed stated that swimming was an excellent piece of exercise or lifestyle activity but was not a ’treatment’.
e)When asked whether he had experience with patients such as the Applicant, for whom evidence-based therapies had not worked, Dr Ahmed agreed that it was appropriate to individualize some treatment and try different approaches for individuals.
f)Dr Ahmed also accepted that adjunct treatments can assist in daily functioning.
Mr Nav Ahmad-Khan, Physiotherapist, provided a letter dated 24 January 2022,[13] which explained the positive impact upon the Applicant’s mood and mental wellbeing of engaging in both group and solo independent exercise programs at her local leisure centre, to manage her chronic pain condition. He recommended funding be made available to enable the Applicant to be able to manage her chronic pain and to have a positive impact on her mental health conditions through gym membership and swimming.[14] Mr Ahmad-Khan did not give oral evidence at the hearing.
[13] HB, p.122-123.
[14] HB, p.122.
Dr Chris Bruce, Occupational Therapist, prepared reports dated 21 January 2021 and 9 March 2022 and gave sworn evidence during the hearing.
As to his report dated 21 January 2022, Dr Bruce provided the following additional information:[15]
(a) He had seen the Applicant on 14 and 30 September 2021 prior to preparing the report and these were the first times he had seen the Applicant. He has seen her for treatment a number of times since then, but she receives sporadic, rather than regular, treatment.
(b) At that time Dr Bruce made two recommendations for funded supports being access to an aquatic centre for swimming and assistance with cleaning and other activities of daily life. At that stage he recommended two hours per week with household tasks for cleaning and access to swimming, but the Applicant’s circumstances have changes since then.
[15] Incorrectly labelled 2021 (HB, p.124).
In his report, dated 9 March 2022,[16] Dr Bruce recommended fortnightly 1.5hour remedial massage sessions, “including soft tissue physical therapy, deep tissue massage, cupping, myofascial release”. The report stated that this proposed massage treatment would assist the Applicant by reducing her stress levels and stress load, “through increased activation of the parasympathetic nervous system” and improve the Applicant’s capacity to handle stress. He also concluded that the proposed massage treatment would lead, inter alia, to a “10% reduction in anxiety and depression scores”, a “10% reduction in heart rate variability”, a “10% improvement in health and disability scores” and “qualitative improvement” in sleep and capacity to interact with others. As to that report, Dr Bruce provided the following additional information during the hearing:
(a) He consulted the peer reviewed literature to support his recommendation for myotherapy. He also made enquiries of the individual practitioner he recommended and was satisfied that she was experienced with people with these types of injuries and that the recommended touch therapy can assist the parasympathetic nervous system. He stated that he would not have recommended massage therapy if that were not evidence-based.
(b) Dr Bruce accepted that talk-based therapy is evidence-based but stated that, in a well-rounded multi-disciplinary therapy plan one would hope there is a range of therapies which may include, as an adjunct to talk therapy, touch, animal therapy and pharmaceutical treatments, the more targeted the more benefit. He stated that he as only recommended massage therapy for a few patients with psychological issues and has only limited clients with that diagnosis.
[16] HB, p.131.
As to his report dated 27 June 2023,[17] Dr Bruce stated that this was prepared after seeing the Applicant on 27 April 2023. He did not form a view then about the definitive number of support worker hours required by the Applicant but noted that, after the Applicant secured safe housing, she was then able to become independent in other aspects of her needs. In that report he recommended an increase in her transport funding given her attendance at college. He felt the highest level of Transport funding available was reasonable. As to the number of support worker hours that the Applicant may now need, Dr Bruce stated:
(a) The reason that the Applicant required additional supports related to anxiety: this releases cortisol which is the stress hormone and this is difficult for her to regulate. Therefore, ordinary tasks become a lot harder when the body experiences high levels of chronic stress. Brain is left in a worse position to problem solve, process etc and attend to daily tasks of living. Tasks of support that would be helpful to the Applicant include shopping, supporting her to attend social and community events, church, women’s group etc.
(b) Another factor in this case is that the Applicant’s workload has increased dramatically – now that she is engaging in formal training, employment, church, making friends, is a home maker in her new home and has a lot more going on. Whilst that is a great outcome, it comes at a cost. Dr Bruce described the situation for the Applicant as precarious and one that could fall over without the proper supports. Her disability-related need relates to the aggregate of tasks affect her sleep, self-esteem and related factors and these make it difficult to engage in all tasks.
(c) Investing to support the Applicant in engaging in those appropriate life stage activities such as her career now, whilst the Applicant is in stable housing will pay dividends. Otherwise, the Applicant will be looking at long term support from a range of services.
(d) Over the next 12 months (at which point a careful reassessment should be undertaken) 30-35 hours of support worker assistance is needed per week with a view to that being reduced over time as she gains in confidence and is able to be more independent and confident. This is necessary as the Applicant does not have access to informal family supports. This consists of, on average, in being reasonable for the Applicant to receive about 4 hours a day during which the shopping, attending workplace, attending hydrotherapy, assisting with tasking for her studying and cooking up batch meals at a time so that she does not have to cook multiple times a day. Assisting with learning and supporting her education, including improving computer literacy skills, budgeting etc, would be an additional 7 hours per week. Based on his assessment of the data and history presented, that level of NDIS funding would potentially provide a great platform to start achieving the Applicant’s goals.
(e) Dr Bruce noted that it can be overwhelming for the Applicant to use public transport and that she benefits from support when travelling. A Support Worker would accompany and support her emotionally and help her to feel safe through being reassuring. She would require support if using public transport. He accepted that, as the Applicant has long-term PTSD and has only recently gained stable housing and re-entry to the workforce, and in order to keep job needing to finish a qualification, it was reasonable and necessary that she currently have access to his recommended level of support.
(f) Uber or taxi travel was also worth exploring as an alternative to public transport as this may provide a good value for money alternative to having someone driving. Dr Bruce noted that he should have considered this issue in his report. He recommended looking at combination of all options, Ubers, public transport and ultimately obtaining her driver’s license. If the Applicant was able to feel safe and secure in an uber on her own that is acceptable and would provide a cost-effective alternative to support worker assistance during travel to work and to other activities.
(g) Dr Bruce did not consider the recommended number of hours, or even up to 40 hours of support worker assistance per week, is likely to be deleterious. He considered that the short-term benefits outweigh the risk of learned helplessness or reliance. If the Applicant does not have a carefully curated therapy plan then this number of hours could be burdensome but this recommendation was not forever – the idea is that she has graded support starting out with higher number of hours that can be reduced over time. She may possibly be able to get to a position where she has a support worker one day and is independent the next day. The hope for the Applicant is that she can ultimately participate in community and leisure in future and, in so doing, self-actualize.
[17] HB, p.260, pages 7-8 of the report.

In a letter from Dr Membrey, General Practitioner, dated 26 November 2021, Dr Membrey stated that it would “likely make a significant improvement to her mental health condition if she were supported to attend hydrotherapy classes and general water exercises to improve her pain and physical mobility.”[18]
[18] HB, p.129.
During the hearing, Dr Membrey stated:
(a) He had been Ms Ryan’s General Practitioner since 21 April 2017 and consulted with her regularly, monthly or two monthly, as a mix of telehealth and in person.
(b) Dr Membrey deferred to the Occupational Therapy recommendations for funded supports of the Applicant as he was her GP and this was not his area of expertise. He did not disagree with any of the supports proposed by Dr Bruce. He was aware that Dr Bruce recommended 30-40 hours per week of support worker hours and considered that this may not be useful in the long run and could lead to dependency at the upper range of those hours. He suggested a stepped process to address the concerns that those supported in the NDIS may be deskilled over time if the supports do not provide for a process of skill building. He deferred to the OT about the hours and process for stepping down support over time but agreed with “stepped down approach” to enable the Applicant to learn skills. He stated that this would need to be based on a realistic duration for skill building noting that the Applicant wished to obtain her driver’s licence and was also sustaining her employment.
(c) He raised the Applicant’s transport to and from work and being mindful that she has PTSD and some of her traumatic events have occurred on public transport and stated that this would “eat a lot of time”. He accepted that this need would reduce if she learned to drive but noted that she would require support in the meantime to maintain her current employment. Dr Membrey considered that this was only one component of her support needs and, whilst transport support would be of benefit, he would not say it’s the most important or dominant aspect of her treatment.
(d) Dr Membrey stated that as a result of the Applicant maintaining employment and fulfilling a meaningful role in society her mental health has improved. He noted that trauma is a whole of person experience and impacts all aspects of a person’s life. With support, the Applicant has been given direction as to how you improve and Dr Membrey stated that he had been impressed with the Applicant’s progress to achieve goals when supported.
(e) Dr Membrey accepted that he had written a supportive letter for the Applicant’s request to have extra time to finish studies. He stated that, when left without support, the Applicants ability to organise and complete studies is jeopardized. When isolated, and not well supported, the Applicant’s mental health deteriorates and, with it, her ability to socially interact and participate in employment.
(f) Dr Membrey stated that he was aware of the very conflictual and damaging relationship the Applicant shared with her mother and stated that, if she were forced to re-engage with that relationship, because she was not supported by NDIS, this would likely be damaging for the Applicant.
(g) Dr Membrey stated that swimming and other exercise were appropriate activities for the Applicant given the clear evidence that PTSD has a whole body impact, including a physical impact. Treatment needs to be multi-modal. Often, yoga and swimming are the kinds of low impact therapy that can assist in alleviating symptoms.
Ms Monique Ramsay, nurse and support worker, provided an undated statement that was lodged by the Applicant at the conclusion of the hearing. Ms Ramsay did not give evidence at the hearing. In her statement she confirmed the Applicant’s evidence about her unsupportive family. Ms Ramsay also stated that she assisted the Applicant with her studies, including her first aid and food handling modules, by focussing her back to the questions and encouraging her to complete the modules. She stated that the Applicant would have been overwhelmed without support as there were over 50 hours to complete in a short period of time, and that the Applicant’s ongoing study requirements will require a lot of hours and time for studying.
A quotation from Bloom Massage and Myotherapy indicated that 26 sessions of 1.5 hours of remedial massage would cost $3,380 ($130 per session).[19]
[19] HB, p.135.
CONSIDERATION
The Tribunal has considered the substantial medical and other evidence before the Tribunal that is summarised above and in addition to the discussion below as to each aspect of section 34 of the NDIS Act, makes the following observations:
a.The Applicant has psychosocial impairments arising from PTSD and persistent depressive disorder and suffers from psychosocial dysfunction, namely in social interaction (the PTSD and depression affecting the Applicant’s ability and confidence in making and maintaining relationships) and mobility (in her ability to use public transport, as those conditions affect her confidence and contribute to increased anxiety due to being in situations with strangers and noises).
b.As a result of these limitations, the Tribunal is satisfied the Applicant would benefit from funding at an appropriate level to provide for support workers to assist and support her in meeting her goals and;
c.the Applicant’s current Core Supports budget now includes funding for supports provided by support workers of 30 hours her week and of level three funding for transport. The Applicant has sought additional hours for support worker assistance.
In NDIA v WRMF[20] the Full Court of the Federal Court stated that, “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, and to do so on the basis of the values set out in the objects and guiding principle clauses of the Act, as well as the values set out in section 17A of the Act.”[21]
[20] [2020] FCAFC 79.
[21] Ibid at [141].
Further, consistent with the approach of the Full Court in McGarrigle v National Disability Insurance Agency,[22] the statutory task of determining the contents of a participant's plan, and what are the reasonable and necessary supports, is a fact-intensive exercise. The exercise is highly individualised having regard to the circumstances of each particular participant.[23]
[22] [2017] FCA 308.
[23] National Disability Insurance Agency v. WMRF [2020] FCAFC 79 at [152].
In National Disability Insurance Agency v KKTB,[24] the Full Court stated that: “Each decision … to approve a statement of participant supports is a decision about an individual, and their needs …the legislative scheme demands a focus that is very much on the support needs of the individual participant”.
[24] [2022] FCAFC 181 at [26].
The Applicant presented as an honest witness who was prepared to openly discuss her disability needs and the challenges she faces in meeting her goals. The evidence she gave was consistent with that of her treating medical and allied specialist team who each presented as genuinely impressed with and supportive of the steps the Applicant has taken to live with her disabilities within a framework of appropriate funded supports. The evidence available to the Tribunal allows for the Tribunal to have regard to the individualised approach to be applied in arriving at the correct or preferable decision in this case.
The Applicant’s short term goals are:
To be supported to continue my TAFE course and the placement my course requires
To develop the skills and capacity to maintain my mental and physical health to live independently
Her longer term goals including maintaining her independent housing, learning to drive and widening her social network. Subsection 34(1)(a) requires the Tribunal to consider whether the support will assist the Applicant to pursue the goals, objectives and aspirations included in her statement of goals and aspirations.
The funded support of membership to a local Leisure Centre is now included in the reviewable decision. The Tribunal accepts this approach as correct, having regard to the abundant evidence as to the connection between the physical and psycho-social symptoms of the Applicant’s PTSD and the evidence that the Applicant is better able to approach her larger life goals with positivity when she is physically well, calmer and able to sleep, all of which are dramatically improved by the Applicant’s regular exercise and, in particular, swimming.
In particular, the Tribunal accepts the Applicant’s own written and oral evidence which, consistently, was to the effect that participation in swimming and group fitness classes is extremely helpful in reducing the long-term effects of her disability, including by helping her to self-regulate her stress responses and maintain both mental and physical health.
Her psychiatrist, Dr Jagadheesan, gave compelling evidence about the link between physical wellbeing and the mental health of people with PTSD symptoms. He also noted that the Applicant has chronic pain, the management of which is important so as to avoid negatively impacting her psychiatric disorder.
Dr Ahmed, psychiatrist, had not examined the Applicant and gave evidence of a more generalised nature about psychological or non-pharmaceutical treatments, which he described as “parallel or secondary” treatments. However, he acknowledged that such adjunct treatments could assist in daily functioning and accepted that it was appropriate to individualize some treatment and try different approaches for individuals.
Both Occupational therapist, Dr Bruce, and physiotherapist, Mr Ahmad-Khan recommended swimming and exercise to manage the Applicant’s pain and to positively impact her mental health conditions. These views were consistent with the evidence of Dr Membrey, General Practitioner, that swimming and other exercise were appropriate activities for the Applicant as part of her multi-modal treatment, given the clear evidence that PTSD has a whole-body impact.
The Tribunal notes that the Applicant lodged a document provided by the Applicant’s plan-manager and the relevant local leisure centre after the hearing which confirmed that the position expressed by the Respondent during the hearing, of $21.70 per week for this support, was about right. Since the hearing, the re-considered decision includes funding for this support at a concessional rate of $14.90 per week. However, the additional documentation demonstrates that the Applicant is not entitled to access that concessional rate and the current rate for the appropriate level of membership is $22.62 per week ($1,176 annually). The Respondent has not commented upon this material since its lodgement with the Tribunal. There is no reason to reject the information provided by the Applicant about the necessary level of funding for this support and the Tribunal is satisfied that funding of $1,176 annually, or $22.62 per week, is the proper quantification of the reasonable and necessary support to allow the Applicant to access regular swimming and group exercise.
As to funding for the 39 hours of massage therapy per annum sought by the Applicant, there is evidence available to the Tribunal that massage is therapeutic and beneficial and addresses the physical aspects of the impairments arising from PTSD. However, there is also evidence available to the Tribunal that swimming and other forms of exercise address these impairments. The funding of those supports is consistent with the Applicant’s goals of working towards independence and self-regulation. The Tribunal finds that massage would be an appealing addition to the Applicant’s holistic care, and something she can explore if she wishes. However, the evidence does not adequately demonstrate that this support is reasonable and necessary in order to support the Applicant’s goals and aspirations.
It is relevant to note, before considering the reasonable and necessary hours of assistance from support workers, that the Applicant now has Level 3 Transport funding in her plan. This is the highest level of funding obtainable for transport assistance for those who are working and who cannot readily access public transport and is designed to provide financial relief to scheme participants who incur expenses in excess of those which would be incurred on public transport. The levels cannot be designed to completely indemnify a participant as they are a generic “one size fits all” approach with the levels dictating the degree of financial need on the part of the participant. Level 3 is the most generous level of funding provided for in the NDIS Pricing Guide.
It is also relevant to note that, whilst the Tribunal is to take an individualised approach, having regard to the Applicant’s own circumstances, the budget for support workers is provided to a participant as part of their core funds. The nature of this funding is that it is flexible and is available to the participant in a way that is consistent with their right to exercise choice and control over their supports. Therefore, whilst the Applicant’s needs have been considered on a weekly basis, that being the metric most frequently used in the evidence of the various witnesses, not every week will be the same in practical terms for the Applicant. She may have higher needs in some weeks and have other commitments which leads to a requirement for fewer hours of support worker assistance in others. The findings made by the Tribunal take account of this flexibility.
The Applicant’s evidence is that she prefers to be driven to work, to access the community and to the leisure centre by a support worker in their car. However, the Applicant does sometimes travel on public transport alone, notwithstanding that she would prefer not to and finds it triggering of her PTSD symptoms having regard to past trauma related to witnessing distressing events whilst travelling on public transport. She also gave evidence to the effect that Transport funding at Level 3 would provide about $120 per fortnight in assistance (which is about right) but that amount would not be sufficient to meet all of her travel costs unless she used a combination of public transport and taxis and Ubers.
Both support worker hours and transport funding are provided for in a participant’s plan as part of a pool of flexible core supports over which the Applicant can exercise choice and control. Therefore, if she chooses to utilise her transport funding to, for example, travel to work on in an Uber, and chooses to use a support worker for community access after work, her funding would allow for that flexibility. However, the funded supports cannot be duplicated, that is, the Applicant is not able to receiving funding for both transport costs and support worker assistance at the same time if only one of those supports is sufficient to meet her disability-related support needs. Rule 5.1(c) provides that a support will not be funded if it duplicates other funded supports. For this reason, the Tribunal notes that the number of support worker hours that can be funded for the reasonable and necessary support of the Applicant must be measured having regard to the fact that Level 3 transport funding will assist the Applicant to meet at least some of her transport needs. Without explicit evidence as to how the Applicant would utilise the Transport funding, the Tribunal is left to reasonably extrapolate from the available evidence that her Transport funding would meet the Applicants travel by Uber or Taxi either from home to work or from work to home or the swimming pool, but not both ways. There is no evidence before the Tribunal that the Applicant requires the assistance of a support worker whilst in an Uber or taxi.
The Applicant contended that 50 hours of support worker assistance each week was reasonable and necessary as she had benefitted from that level of support in the past. The Tribunal notes that this translates to more than 7 hours of one-on-one support each day if utilised evenly across the week. The Applicant does not claim, and the evidence does not suggest, that she requires assistance in the evening after work or swimming, or overnight assistance.
Dr Jagadheesan stated that a support worker could assist with “some community support” and to “facilitate contact” with others. The Applicant would benefit from “supportive relationships” with support workers who provide psychological support to the Applicant to allow her to develop her potential including through cooking, driving or more specialized care from someone with a trauma background.
During 2022, Dr Bruce recommended two hours of weekly support for the Applicant. In 2023, after the Applicant had obtained safe housing, he recommended an increase in her transport funding given her attendance at college but did not express a view about support worker hours. During the hearing, Dr Bruce recommended 30 to 35 hours per week of support worker assistance is needed with a view to that being reduced over time as the Applicant gains in confidence and is able to be more independent. He also mentioned 40 hours per week when asked about whether this level of support might lead to dependency. The Tribunal has considered the recommendations of Dr Bruce’s evidence is consistent with some of the care to be included in the 30 to 35 hours being travel in the support worker’s vehicle. Allowing for a modest adjustment of five hours per week to ensure that funded supports are not duplicated, no more than about 30 hours per week of support worker hours are required for the Applicant to received sufficient support in the tasks identified by Dr Bruce so long as she utilizes her transport funding for some travel that might otherwise have been undertaken with support worker. The Tribunal notes that 30 hours is at the lower end of the recommended range of support worker hours even if the Tribunal were not to make that adjustment for travel.
On this basis, the Tribunal finds that 30 hours per week of support worker assistance should be funded to be used flexibly by the Applicant for a 12-month period before a reassessment of the Applicant’s reasonable and necessary support needs. During this period the Applicant has indicated that she wishes to work towards completion of her certificate course and some driver education, which are consistent with the Applicant’s goals as she continues to be supported towards greater independence. The Tribunal accepts this approach as correct, having regard to the available evidence. It follows that the Tribunal does not accept that a further 20 hours per week (50 hours in total) are necessary in order to assist the applicant to meet her goals, objectives and aspirations.
The Tribunal accepts the conclusions drawn by the various medical and allied health professionals as set out above, which are consistent with these conclusions. Accordingly, the Tribunal finds that the requirements of subparagraph 34(1)(a) of the NDIS Act are met in respect of 30 hours of support worker assistance (together with her other funded supports) but not more.
Subsection 34(1)(b) of the NDIS requires the Tribunal to consider whether the support will assist the Applicant to undertake activities, so as to facilitate her social and economic participation. The Tribunal considers that the Applicant’s social and economic participation includes her community contact, exercise and work. The Tribunal accepts that support workers will provide emotional regulation and support for the Applicant to undertake the study necessary to continue in her job together with facilitating her community access. The observations made above about the appropriate number of support worker hours each week applies equally to the issues to be considered under section 34(1)(b) of the NDIS Act. the Tribunal notes that Dr Bruce included, in his recommendation, seven hours per week to support the Applicant with her continued studies. This is a key aspect of the support required to facilitate the Applicant’s ongoing career working with children and the Tribunal accepts that it is both reasonable and necessary that she access this disability-related support to for this purpose. The tribunal accepts that 30 hours per week, but no more, represents a reasonable and necessary level of funded support to facilitate the Applicant’s social and economic participation.

For the reasons already expressed, the Tribunal considers that the requirements of subparagraph 34(1)(b) of the NDIS Act are met in respect of 30 hours of support worker assistance and membership to a facility for group exercise and swimming.
Support Rule 3.1 provides additional “value for money” considerations in determining whether the support meets section 34(1)(c). Whilst the Applicant could exercise by, for example, going for a walk on her own or could undertake other types of exercise at home, the evidence before the Tribunal demonstrates that the benefits to the Applicant of both swimming and group exercise far exceed that of such other types of exercise that can be achieved at a lower cost. The Tribunal is not satisfied that the alternatives provide the same benefits and is satisfied that the relatively modest weekly expense of membership to a local Leisure Centre in order to access these activities provides the combination of physical and mental health benefits and opportunities for safe community connections which cannot be achieved by exercising alone.
The evidence before the Tribunal about massage therapy was less certain. Whilst this would be a pleasant and beneficial type of therapy, there was insufficient evidence before the Tribunal to demonstrate that the not insignificant cost of massage therapy would provide value for money. Having regard to the conclusions arrived at earlier in these reasons, it is not necessary to decide if massage therapy meets the requirements of subsection 34(1)(c) of the NDIS Act in this case.
The Tribunal has expressed the view that 30 hours per week of support worker assistance is a reasonable support to fund for a 12-month period, and there was no evidence before the Tribunal that a lower cost alternative would assist the Applicant in the same way or provide similar benefits. There was insufficient evidence that more than 30 hours per week of this support was necessary and it follows that the additional hours would not satisfy the requirement in subsection 34(1)(c) of the NDIS Act.
Weighing all of the evidence, the Tribunal finds that the supports of access to swimming and group exercise, and 30 hours of support worker assistance per week each represent value for money in that the costs of these supports are reasonable, relative to both the benefits achieved and the cost of alternative supports.
The consensus of expert opinion in this case is that support workers are likely to be effective and beneficial for the Applicant’s support needs, as required by section 34(1)(d) of the NDIS Act. Similarly, the Applicant’s treating experts expressed their clear opinion as to the evidence-based benefit of group exercise and, in particular, swimming to address the Applicants physical and mental symptoms of PTSD and address her disability-related needs.
The expert opinion was divided as to the benefits of massage therapy. There was insufficient uncontroverted evidence before the Tribunal to demonstrate that massage therapy was an evidence-based support, although it may well be of benefit to the Applicant. Having regard to the conclusions arrived at earlier in these reasons, it is not necessary to decide if massage therapy meets the requirements of subsection 34(1)(d) of the NDIS Act in this case.
Having regard to the relevant evidence, the Tribunal finds that access to swimming and group exercise, and 30 hours of support worker assistance per week each are both likely to be effective and beneficial for the Applicant, having regard to current good practice.
Neither party submitted that the supports raised by the evidence were not reasonable, taking account of what families, carers and networks might reasonably provide or that the support was more appropriately to be funded or provided by other than the NDIS. In particular, the Tribunal accepts the uncontroverted evidence that the Applicant is not able to rely on informal supports and that doing so has the potential to impact negatively upon the Applicant. The Tribunal is satisfied that the support meets both of these subparagraphs 34(1)(e) and (f) of the NDIS Act.
In addition to Support Rules 3.1 and 3.2 discussed above, Rule 5 of the Support Rules includes general criteria for supports and specifies which supports will not be funded or provided. Relevantly, Support Rules 5.1 provides as follows:
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.
Mortimer J in McGarrigle, with respect to the Rules, states as follows:[25]
[43] The rules are legislative instruments to be made by the Minister: see s 209. Section 209, sub-paras (4) to (7) constrain the rule-making power to preserve the federal characteristics of the NDIS The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (the 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, within the federalism constraints imposed in s 209, some policy decision-making about the nature and extent of supports to be provided or funded under the NDIS.
[25] McGarrigle v National Disability Insurance Agency [2017] FCA 308 at [43].
The primary issue initially advanced by the Respondent in this case, in relation to the Rules, appeared to be that that the cost of attending at a leisure centre is discretionary and, in any event, is a household or day-to-day cost that will not be funded under the scheme. By funding this support the Respondent has, in effect, withdrawn this submission. The evidence is consistent with the finding that this is a disability-related support that goes beyond discretionary or household expenditure because of the particular support needs of the Applicant in this case.
The Tribunal has already considered and determined that duplication of the kind contemplated in Rule 5.1(c) cannot be funded and has arrived at the finding that 30 hours of support worker assistance is reasonable and necessary but that additional hours sought by the Applicant in excess of this level cannot be funded under the scheme. No further issues arise under Rule 5.1 in this case.
Having considered the provisions of the NDIS Act and the Rules, then, if not inconsistent, the Tribunal may also be called upon to consider the relevant Operational Guidelines. The NDIS Act and Support Rules set out extensive requirements that must be met before a support can be funded. The legislative intent is that, once a support meets the statutory criteria, including the support rules, it is a support that can be funded under the scheme. The parties did not draw the Tribunal’s attention to any particular aspect of Operational Guidelines that bear upon the facts of this case and the Tribunal is satisfied that, having appropriately considered the Act and the Rules in this case, there is no aspect of the Operational Guidelines that would lead the Tribunal to a different conclusion.
For completeness, subparagraph 3(3)(b) of the NDIS Act requires regard to be had to the need to ensure the financial sustainability of the National Disability Insurance Scheme. In addition, subparagraph 4(17) provides:
It is the intention of the Parliament that the Ministerial Council, the Minister, the Board, the CEO 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 sustainability of the National Disability Insurance Scheme.
There was no evidence before the Tribunal and no submissions made regarding the financial sustainability of the National Disability Insurance Scheme and no basis to conclude that, in the particular circumstances of this case, the proposed funded supports to be approved in the statement of participants supports are likely to have an adverse impact on the sustainability of the NDIS.
CONCLUSION
For the reasons set out above, the Tribunal finds the Applicants statement of participant supports should specify funding for the reasonable and necessary supports of access to swimming and group exercise, of $1176 per year, or $22.62 per week, and 30 hours of support worker assistance per week each, with a reassessment date 12 months after the additional support worker assistance was first funded, being 16 February 2025.
As this decision differs from the decision under review (as remade on 16 February 2024 following a remittal under section 42D of the AAT Act) in respect (only) of the rate of funding for swimming and group exercise, the Tribunal will set aside that decision and remit the matter with a direction to specify the appropriate rate and otherwise replicate the supports as currently funded.
DECISION
The decision under review is set aside and the decision is remitted for reconsideration with a direction that the Applicant’s approved statement of participant supports specifies:
a)From the date of this decision, funding for access to swimming and group exercise, of $1176 per year, or $22.62 per week; and
b)That the reasonable and necessary supports otherwise specified be replicated until the reassessment date of 16 February 2025.
I certify that the preceding 89 paragraphs are a true copy of the reasons for decision of Senior Member K Buxton.
................................[SGD]........................................
Associate

Dated:
29 February 2024

Hearing:
27 September 2023, 29 November 2023, 6 December 2023, 9 February 2024

Applicant
Faith Ryan

Respondent Solicitor Mills Oakley

[2024] AATA 310

29 February 2024

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Remedies

Appeal

Dated:	29 February 2024
Hearing:	27 September 2023, 29 November 2023, 6 December 2023, 9 February 2024
Applicant	Faith Ryan
Respondent Solicitor	Mills Oakley