Sanchez and National Disability Insurance Agency
[2024] AATA 3441
•30 September 2024
Sanchez and National Disability Insurance Agency [2024] AATA 3441 (30 September 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2023/1936
Re:Alana-Karene Sanchez
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Member S Smith
Date:30 September 2024
Place:Brisbane
DECISION
Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision under review.
.....................[SGD]...................................................
Member S Smith
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – National Disability Insurance Scheme Act 2013 (Cth) – reasonable and necessary supports – value for money – autism spectrum disorder – where supports not related to disability – disability needs of the applicant –functional capacity – consideration of access criteria – decision under review affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013Cases
Beezley v Repatriation Commission [2015] FCAFC 165 (2015) 150 AKD 11
G v Minister for Immigration and Border Protection [2018] FCA 1229
HPSC and National Disability Insurance Agency [2021] AATA 727
HRZI and National Disability Insurance Agency [2023] AATA 481
McGarrigle v National Disability Insurance Agency [2017] FCA 308
McLaughlin and National Disability Insurance Agency [2021] AATA 496
MDCT and National Disability Insurance Agency [2022] AATA 697
Mulligan v National Disability Insurance Agency [2015] FCA 544
National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Agency v KKTB [2022] FCAFC 181
National Disability Insurance Agency v WRMF [2020] FCAFC 79
NJSC and National Disability Insurance Agency [2022] AATA 4449
Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 60
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Spires and National Disability Insurance Agency [2023] AATA 1230
WRMF and National Disability Insurance Agency [2019] AATA 1771Secondary Materials
NDIS - Operational Guidelines - Reasonable and necessary supports, as of 6 October 2023
REASONS FOR DECISION
Member S Smith
30 September 2024
INTRODUCTION
Ms Sanchez is a 45-year-old participant in the National Disability Insurance Scheme (the scheme). She lives with her 12-year-old son and former husband in Queensland.
Ms Sanchez became a participant of the scheme on 28 October 2020 on the basis of impairments resulting from a diagnosis of autism spectrum disorder (ASD) level 2.[1]
[1] EB1, page 27.
On 12 January 2023, the National Disability Insurance Agency (the Agency) approved a statement of participant supports (SOPS)[2] for Ms Sanchez. On 23 February 2023, Ms Sanchez requested an internal review of this decision under section 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act).[3]
[2] T Documents, T18.
[3] T Documents, T10.
On 22 March 2023 the Agency notified Ms Sanchez that it had decided to affirm its earlier decision.[4] On 24 March 2023 Ms Sanchez lodged an application with the Administrative Appeals Tribunal (the Tribunal) to review the Agency’s internal review decision.[5]
[4] T Documents, T2.
[5] T Documents, T1.
ISSUES FOR DETERMINATION
Ms Sanchez seeks additional funding in her core support budget for 13 items (the requested supports).[6] The Tribunal must determine whether:
(a)they are reasonable and necessary supports; and
(b)they are capable of being funded by the scheme.
Table of requested supports
6 Oral evidence of Ms Sanchez.
Item
Requested Supports
Agency’s Position
1
Botox injections in hairline, upper lips and jaw to stop excessive sweating and movement of jaw – at a cost of $550 bi-monthly, $3,300 each year
Section 34(1)(c), (d)
Rule 5.1(b); 7.5(a), (b)
2
Synthetic hair - $50 per month, $600 each year
Section 34(1)(c), (d)
Rule 3.1; 5.1(b), (d)
3
Acrylic nails - $60 per month, $720 each year
Section 34(1)(c), (d)
Rule 3.1; 5.1(b), (d)
4
Eyelash extensions - $50 per month, $600 each year
Section 34(1)(c), (d)
Rule 3.1; 5.1(b); (d)
5
Clothing and shoes - $3,000 each year
Section 34(1)(c), (d)
Rule 3.1; 5.1(b), (d); 5.2
6
Compression underwear - $500 each year
Section 34(1)(c), (d)
Rule 3.1; 5.1(b), (d); 5.2
7
Anti-sweat products - $30 per month, $360 each year
Section 34(1)(c), (d)
Rule 5.1(d); 5.2
8
Perfume - $60 per month, $720 each year
Section 34(1)(c), (d)
Rule 5.1(d); 5.2
9
Makeup - $60 per month, $720 each year
Section 34(1)(c), (d)
Rule 3.1, 5.1(b), (d)
10
Maths course, $3498 for a ‘one-off course.’
Section 34(1)(c), (d)
Rule 3.1
11
Audible membership and credits - $500 each year
Section 34(1)(c), (d), (f)
Rule 3.1
12
Transport assistance to ‘attend appointments and other things.’
Section 34(1)(c), (e), (f)
Rule 5.2(b); 3.4(a); 7.21; 7.22
13
An increase from 5 to 24 hours per week for support worker funding for core social, civic and community participation.
Section 34(1)(c), (d)
Rule 5.1(c)
The requested supports numbered at 1 - 11 in the above table total $14,518.00 per year. Ms Sanchez was unable to provide a total number of hours for item 12. Ms Sanchez’s position was that item 12 is contingent upon item 13, because if she does receive funding for 24 hours per week for support worker assistance then additional funding for transport is not required.
The Agency’s position, as referred to in the table of requested supports is that none of the listed requested supports satisfy the legislative criteria under the NDIS Act nor the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (supports rules).[7]
THE LEGISLATION, PRECEDENT AND GUIDELINES
[7] Agency’s closing submissions.
The National Disability Insurance Scheme Act 2013 (Cth)
Section 34(1) of the NDIS Act sets out the criteria of reasonable and necessary supports that will be provided in a participant’s statement of participant supports. The criteria under section 34(1) are cumulative and all the criteria must be satisfied which are as follows:
Reasonable and necessary supports
(1) For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(a) the support will assist the participant to pursue the goals, objectives and aspirations included in the participant's statement of goals and aspirations;
(b) the support will assist the participant to undertake activities, so as to facilitate the participant's social and economic participation;
(c) the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d) the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e) the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f) the support is most appropriately funded or provided through the NationalDisability 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.
(2) The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(a) to (f).
The National Disability Insurance Scheme (Supports for Participants) Rules 2013
Section 34(2) of the NDIS Act provides that the supports rules may prescribe methods or criteria to be applied, or matters to which the CEO must have regard, in deciding whether the criteria under section 34(1) are met in respect of a requested support.
Section 35 of the Act provides for the making of rules in relation to prescribing reasonable and necessary supports and also general supports that will not be funded or provided under the scheme.
In this regard, Mortimer J made the following observations in McGarrigle v National Disability Insurance Agency[8] at [43]:
[8] McGarrigle v National Disability Insurance Agency [2017] FCA 308 (McGarrigle).
‘The [supports 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’.
12.Relevant to the ‘reasonable and necessary’ criteria under section 34(1)(c) and (d) are rules 3.1 - 3.3 of the supports rules which provide as follows:
Value for money
3.1 In deciding whether the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support, the CEO is to consider the following matters:(a) whether there are comparable supports which would achieve the same outcome at a substantially lower cost;
(b) whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long-term benefit to, the participant;
(c) whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);
……
(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).Effective and beneficial and current good practice
3.2 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include:
(a) published and refereed literature and any consensus of expert opinion;
(b) the lived experience of the participant or their carers; or
(c) anything the Agency has learnt through delivery of the NDIS.3.3 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary seek, expert opinion.
The supports rules also provide general criteria for supports, including reasonable and necessary supports which will not be funded through the scheme and states as follows:
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.
5.2 The 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.
5.3 The following supports will not be provided or funded under the NDIS:
(a) a support the provision of which would be contrary to:
(ii) a law of the State or Territory in which the support would be provided.
Lastly, the supports rules provide considerations relating to whether supports are most appropriately funded through the NDIS which include the following:
Health (excluding mental health)
7.5 The NDIS will not be responsible for:
(a) the diagnosis and clinical treatment of health conditions, including ongoing or chronic health conditions; or
(b) other activities that aim to improve the health status of Australians, including general practitioner services, medical specialist services, dental care, nursing, allied health services (including acute and post-acute services), preventive health, care in public and private hospitals and pharmaceuticals or other universal entitlements;
Transport
7.21 The NDIS will be responsible for:
(a)supports for a person that enable independent travel, including through personal transport-related aids and equipment, or training to use public transport; and
(b)modifications to a private vehicle (ie not modifications to public transport or taxis); and
(c)the reasonable and necessary costs of taxis or other private transport options for those not able to travel independently.
7.22 The NDIS will not be responsible for:
(a)ensuring that public transport options are accessible to a person with disability, including through the funding of concessions to people with disability to use public transport; or
(b)compliance of transport providers and operators with laws dealing with discrimination on the basis of disability, including the Disability Standards for Accessible Public Transport 2002; or
(c)transport infrastructure, including road and footpath infrastructure, where this is part of a universal service obligation or reasonable adjustment (including managing disability parking and related initiatives).
The phrase ‘reasonable and necessary’ is not defined in the NDIS Act. In WRMF and National Disability Insurance Agency [2019] AATA 1771 the Tribunal considered the meaning of the phrase in the context of the objects of the NDIS Act in section 3(1)(c), (e) and (g) and its guiding principles at section 4(3) and (11) and observed the following:
[24] ‘Section 4(3) provides that people with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime. The word “need” in that section seems to me to bear its ordinary English meaning, and that suggests to me in turn that the word “necessary” in the expression “reasonable and necessary supports” also bears its ordinary English meaning. One should ask in that respect: does the support fulfil a need of the participant? The word will extend to a health need, but is not limited to health needs.
……
[31] ‘Section 4(11) states that reasonable and necessary supports for people with disability should support such persons to pursue their goals and maximise their independence; and support them to live independently and to be included in the community as fully participating citizens, and to develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment. If something about the disabled person means that he or she is not able to be included in the community as a fully participating citizen, and a reasonable and necessary support will avoid that result, it will be appropriate for it to be provided.’
In McGarrigle Mortimer J considered the phrase ‘reasonable and necessary’ with reference to the guiding principles of section 4(11) and in the further context of section 14, which provides as follows:[9]
14 Agency may provide funding to persons or entities
(1) The Agency may provide assistance in the form of funding for persons or entities:
…..
(ab) for the purposes of enabling those persons or entities to assist people with disability to realise their potential for physical, social, emotional and intellectual development
[9] McGarrigle at [23].
Mortimer J observed that:
‘…in my opinion s 4(11) which sets out what reasonable and necessary supports should enable and empower people with a disability to do, read with s 14 which sets out the purposes for which funding for reasonable and necessary supports is provided.’
Of particular relevance to this application the Full Court in National Disability Insurance Agency v WRMF [2020] FCA 308 (WRMF) considered the threshold of ‘reasonable and necessary’ in justifying the expenditure of public funds stating:[10]
‘…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.’
(Tribunal emphasis)
[10] WRMF at [151]; Agency’s closing submissions.
The Federal Court in the matter of National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis)[11] observed that the ‘reasonable and necessary’ criteria require consideration of the impairments experienced by a person. This observation aligns to the access criteria under section 24(1) of the NDIS Act which provides the following:
[11] At [69].
1. A person meets the disability requirements if:
(a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and
(b) the impairment or impairments are, or are likely to be, permanent; and
(c) the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:
(i) communication;
(ii) social interaction;
(iii) learning;
(iv) mobility;
(v) self-care;
(vi) self-management; and
(d) the impairment or impairments affect the person’s capacity for social or economic participation; and
(e) the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
Therefore the scheme has a clear focus on the functional capacity of a person (in particular section 24(1)(c)) and provides for the funding of ‘reasonable and necessary’ supports so that a person ‘can participate in all aspects of personal and community life’. Reasonable and necessary supports that address an impairment must also be related to a participant’s disability (section 24(1)(a)) and are otherwise excluded under rule 5.1(b).
The Operational guidelines
The Agency issues Operational guidelines in relation to what are considered ‘reasonable and necessary supports’ in a participant’s plan. The guidelines relevant to this review are the Operational guidelines – Reasonable and necessary supports[12] (supports guidelines) which provide as follows:
[12] Webpage: ourguidelines.ndis.gov.au; See also G v Minister for Immigration and Border Protection [2018] FCA 1229 at [171].
Does the support help you pursue your goals?
We need to be satisfied that the support will help you pursue the goals, objectives and aspirations in your NDIS plan… We look at how a support will address your disability support needs, and the disability specific barriers that prevent you from pursuing your goals.
……
Achieving goals usually takes many different kinds of supports. NDIS supports will most likely be just one kind of support that helps you work toward your goals.
Is the support value for money?
• if other supports would achieve the same result at a substantially lower cost - this
means there should be a real or material difference in cost
• if there’s evidence that the support will substantially improve your life stage outcomes and benefit you in the long term
• if the support will likely reduce the cost of other supports over time
• how the cost compares to other supports of the same kind in your area
• if the support will make you more independent, and mean you won’t need as many supports in future, for example, in some circumstances home modifications may reduce the need for home care.
When we consider the likely cost of supports, we consider the cost over the long term. We consider if the support will help you achieve milestones at different ages or stages of your life and have long term benefits.
Evidence-based best practice
We only fund supports that will be, or are likely to be, effective and beneficial for you, having regard to current good practice. This means we consider if there is evidence that the support is effective and beneficial for someone with similar disability support needs.
……
The primary source of evidence we rely on, and give the greatest weight to, is evidence from sources that are reliable and widely recognised. This includes published and refereed literature, and any consensus of expert opinions.
……
Fair early investments
Having access to capacity-building supports early in your NDIS journey is considered to be an early investment. This early investment is intended to help increase your independence and reduce your reliance on NDIS funding over time. This is an important concept we consider when we create your plan, and again at future plan reassessments. When we reassess your plan, we reassess all the supports you require to meet your disability support needs at that time. Over time, your capacity building supports may no longer be reasonable and necessary, in regard to any of the following:
• your current functional capacity
• the effectiveness of the capacity building supports
• value for money.
When we say functional capacity we mean the things you can and can’t do for yourself.
What is reasonable adjustment and why is it important?
People with a disability can sometimes face barriers that make it harder to do the same things as people who don’t have a disability. For example, it might be harder to find and keep a job. Or it might be harder to get in and around places, or to get the same services as other people.
It’s against the law to discriminate against people with a disability in many areas. This includes in employment, when providing goods and services, and when accessing public places.
This means organisations or people who are responsible for providing these services have to make what are called ‘reasonable adjustments’. They have to make sure people with a disability have equal access to the services they provide, as far as is reasonable.
They have to do reasonable things that will make their services equally available to everyone, whether or not you have a disability.
Reasonable adjustments do not mean they have to provide everything you need because of your disability. It means they have to do what’s reasonable to make sure you have equal access to employment, public spaces or services. This takes into account what they can afford to do and what is reasonable to expect them to provide in the circumstances.
When we decide what supports to include in your plan, we need to consider what should be provided through reasonable adjustments. Under the law for the NDIS, we can’t fund a support if it should be provided by someone else through reasonable adjustments.
CONTENTIONS AND EVIDENCE
In the determination of this matter I have considered all the written evidence filed with the Tribunal, and the oral evidence provided at the hearing. Of particular assistance was the expert opinions provided by Dr Verma and Dr Segal in considering the medical evidence before the Tribunal with respect to their areas of practice.
At the hearing the Agency took issue with the relevance and veracity of several documents filed by Ms Sanchez.[13] I concur that these documents did not assist the Tribunal and that they should be given little weight because there was no explanation proffered as to the relevance of these documents to any of the issues in dispute.
Ms Alana-Karene Sanchez
[13] Agency’s closing submissions. The documents in issue were HB2, HB3, HB20, HB22, HB23 and EB2.
Background
Ms Sanchez completed year 12 at high school in 1996 and went on to complete a Diploma of Office Administration, a Diploma of Finance and a Diploma of Beauty Therapy. Ms Sanchez also has a certificate in Makeup Artistry.
Currently, Ms Sanchez is self-employed as an author and YouTube ‘micro-influencer’. She manages a tarot card business whereby customers ‘book’ a reading on her website or her YouTube channel and Ms Sanchez films and uploads videos of their tarot card reading. Ms Sanchez also makes and sells tarot cards on the internet.
Ms Sanchez is also a former professional model, actress and singer and continues to receive royalties for this work. She has previously worked in accounting areas within various government departments.
Ms Sanchez enjoys spending time socially with friends. She reported attending a local art class and also going for regular walks with two friends who are also mothers from her son’s school. Ms Sanchez also enjoys sudoku, cross-stitch, ‘life simulation’ computer games, astrology, numerology, and listening to true crime audiobooks.[14]
[14] Oral evidence of Ms Sanchez.
Contentions
In 2020 Ms Sanchez was diagnosed with ASD – level 2, however she contends that she requires the requested supports in relation to the following further diagnoses:[15]
[15] EB1. pages 26-27; EB2.
·Attention Deficit Hyperactivity Disorder (ADHD) diagnosed in 2022;
·Systemic Lupus Erythematosus (SLE) diagnosed in 2008;
·Post Traumatic Stress Disorder (PTSD) diagnosed in 2013;
·Hyperhidrosis – diagnosis confirmed in 2024;
·Osteoarthritis, right knee, diagnosed in 2018;
·Osteitis Pubis – 2014, diagnosed in 2014;
·Dyslexia, diagnosed in 2023;
·Dyscalculia, diagnosed in 2023;
·Degenerative disc disease L5-S1, diagnosed in 2016; and
·Physical urticaria – diagnosed in 2021.
In relation to her ASD and ADHD, Ms Sanchez stated that she experiences ‘sensory issues’ which cause her to engage in ‘stimming behaviours’. She considered that these behaviours are dangerous because they can cause her physical harm however she is unable to stop doing the behaviours.[16]
[16] EB1. page 163: These were described as a form of ‘sensory seeking’ in adults with ASD.
Ms Sanchez’s stimming behaviours included:[17]
·Picking at her face;
·Sticking things up her nose; and
·Pushing her eyeball up against her pillow.
[17] EB1, page 603.
However, Ms Sanchez also contended that her requested supports are ‘reasonable and necessary’ on the basis that there is nothing ‘wrong’ with her autism-related behaviours. Ms Sanchez stated that she has trialled professionally recommended therapies, including psychology and occupational therapy in the past and they ‘haven’t worked’.[18]
[18] EB1, page 573.
Ms Sanchez’s requested supports are addressed below under seven headings.
Botox to stop excessive sweating and movement of jaw
Ms Sanchez seeks injections of an unspecified ‘synthetic Botox’ to her face, once a fortnight, on an ongoing basis. Ms Sanchez did not provide any invoices for the cost of the funding of this support and provided an estimate as noted in the table.
Ms Sanchez stated that she started these injections when she was 20 years old[19] for her modelling work. Ms Sanchez now seeks Botox injections to her face to reduce the anxiety she experiences as a result of her ASD. She explained that the injections assist with anxiety-related ‘stims’ around facial muscle movements, facial sweat and oil production.[20]
Synthetic hair, acrylic nails, and eyelash extensions to reduce/prevent harm caused by stimming behaviour
[19] EB1, page 598.
[20] EB1, page 598.
Ms Sanchez considered that synthetic hair is required to help with the stim of constantly touching and ‘dedreading’ her natural hair because ‘I do not like my natural hair it is disgusting and feels gross and is hard to maintain.’[21]
[21] Oral evidence of Ms Sanchez.
Ms Sanchez stated that acrylic nails and false eyelashes prevent her from picking at her face and pushing her eyeballs against her pillow. Ms Sanchez did not provide any invoices for the cost of these supports and gave an estimate as noted in the table.
Clothing and shoes, compression underwear, anti-sweat products, perfume and essential oils for sensory issues and urticaria
Ms Sanchez stated that these requested supports were required to address her sensory issues and urticaria as follows:
·She has a preference to wear clothing and footwear brands such as Guess, Calvin Klein, Tommy Hilfiger, Fila and Versace because as a model she was introduced to ‘expensive clothing and the fabric feels completely different;’
·She requires compression underwear and tight clothing because they feel comfortable.[22] She stated her clothing must be ‘VERY tight’ and she finds it problematic to find clothing and footwear that fit;
·Anti-sweat products are required to deal with sensory issues around sweat, body odour and smells and ‘my sweat triggers my urticaria which makes me itchy;’ and
·She requires excessive perfume and essential oils because she has hyper-olfactory senses.[23]
[22] Oral evidence of Ms Sanchez.
[23] EB1, page 167; Oral evidence of Ms Sanchez.
In July 2023 Ms Sanchez provided webpage screenshots of the cost of some of her preferred clothing, shoes and undergarments.[24] Ms Sanchez did not provide any invoices for the cost of the funding of any of these supports and provided an estimate as noted in the table.
[24] EB1, pages 578-596.
Makeup for urticaria and oil production
Ms Sanchez contended that she requires access to foundation and powder makeup to protect her from various skin rashes from being triggered and also reduce her skin picking. Ms Sanchez reported wearing makeup on a daily basis from the age of thirteen and stated that she uses an excessive amount due her constant need to wash it off and reapply.[25]
[25] EB1, page 168.
Ms Sanchez last saw a rheumatologist regarding her SLE around 2009 however ceased engagement because ‘there is nothing they can do.’[26] Ms Sanchez did not provide an invoice for the cost of the funding of this support and provided an estimate as noted in the table.
[26] Oral evidence of Ms Sanchez.
Maths course and Audible membership and credits
Ms Sanchez stated that a one-off math course will help improve her dyscalculia.[27] Also, that an Audible membership and credits will assist her dyslexia.[28] Ms Sanchez did not provide an invoice for the cost of these requests and her estimates are noted in the table.
[27] EB1, page 619.
[28] EB1, page 571.
Transport assistance
Ms Sanchez requested transport assistance to assist with attending appointments because, as a result of her disabilities she has a conditional licence which restricts her to driving in a 15km radius. However Ms Sanchez stated that it was her preference to have support worker assistance for transport.
Support worker hours assistance - 24 hours each week
Ms Sanchez requested funding for 24 hours per week for support worker assistance to access the community including driving her son to and from school each day. She relied on the recommendation of Ms Davies, psychologist, to support this request.[29]
[29] T Documents, T8.
Ms Sanchez stated that her symptoms of anxiety are exacerbated by her son walking the one-kilometre distance between home and school, and that she is unable to catch public transport due to her sensory issues.[30]
[30] EB1, page 553.
Ms Sanchez currently receives funding for support worker assistance as follows:[31]
(a)Domestic Activities – 4 hours/week;
(b)House Cleaning and Other Household Activities - 2 hours/week;
(c)House and/or Yard Maintenance – 2 hours/month; and
(d)Community Social and Recreational Activities - 5 hours/week.
[31] EB1, page 736.
Ms Sanchez was recently informed by the Agency that she has been underspending her funding for support workers. In June 2024 Ms Sanchez had used approximately a quarter of her funding for supports (a) – (c) above, over 9 months (three-quarters) of her plan.
Ms Sanchez was also informed that she had been significantly underspending her funding for category (d). Since 18 September 2023 until June 2024, Ms Sanchez used approximately one-tenth of her funding in this support category.
At the hearing Ms Sanchez stated that she requires 21 hours a week to access the community which she stated was required to include as follows:
·three hours on a Thursday to attend appointments for Botox injections;
·two hours each Monday and Friday to take her son to and from school; and
·two hours each morning, 7 days a week to go for a one-hour walk and then to find ‘something’ for the support worker to do for an hour on the basis that they must be engaged for a minimum two-hour shift.
Dr Surabhi Verma, consultant psychiatrist
Dr Verma is a psychiatrist of 16 years standing. Dr Verma assessed Ms Sanchez via telehealth on 16 February 2024. Dr Verma provided a report dated 28 February 2024 and gave evidence at the hearing.
Dr Verma considered that Ms Sanchez’s reported sensitivities are common for people with diagnoses of ASD, PTSD and ADHD. However Dr Verma opined that Ms Sanchez’s strategies numbered 1 - 9 in the table are ‘uncommon and maladaptive’ because they:
·only provide temporary relief;
·do not address the underlying cause of Ms Sanchez’s anxiety; and
·are not effective evidence-based treatment strategies that have been found to treat other adults with ASD nor have they been found to be effective in long-term treatment.[32]
[32] Oral evidence of Dr Verma.
Dr Verma stated:
I believe that instead of focusing on “individual supports” like Botox for sweating, acrylic nails for reducing skin picking, eyelash extension to reduce rubbing the pillow on her eyeballs, etc, emphasis should be placed on developing her coping strategies. I believe that if individual symptoms are targeted, there is a possibility that the bigger picture would remain unaddressed.
In this case, there should be emphasis on working on her coping strategies, building resilience, working on emotional dysregulation, and interpersonal relationships. I have also noticed that even though she has been seeing a Psychologist, I did not find any mention of being trialled with eye movement desensitisation and reprocessing therapy (EMDR), which is an evidence-based therapy for PTSD. I believe that EMDR should be trialled to address symptoms emanating from complex PTSD.
Dr Verma did not consider that Ms Sanchez’s use of support workers to walk with her as an emotional support in the community due to anxiety is an evidence-based treatment and stated that other forms of treatment are preferable.[33] Dr Verma concluded that ‘once the treatment has been effectively completed, I guess then there might not be any need after all.’
[33] Oral evidence of Dr Verma.
Dr Verma considered that Ms Sanchez would benefit from a management plan based on the biopsychosocial model and also psychoeducation to assist in making informed decisions around evidence-based supports.
Dr Verma recommended ‘extensive therapy’ for Ms Sanchez including applied behaviour intervention, physical activity, sensory integration therapy, mindfulness-based cognitive therapy and cognitive behavioural therapy for long lasting effects.
Dr Alan Segal, dermatologist
Dr Alan Segal is a dermatologist of 30 years standing. Dr Segal assessed Ms Sanchez on the papers, provided a report dated 13 February 2024, and gave evidence at the hearing.
Dr Segal confirmed Ms Sanchez’s diagnoses of urticaria and SLE. Dr Segal explained that SLE is an autoimmune condition that causes internal or external abnormalities, and that it is important to keep lupus under control to prevent more severe impacts to the skin.
Dr Segal opined that the best treatment for urticaria is to firstly remove exacerbating factors of irritation. Secondly, to take medication such as oral antihistamines or oral cortisone and thirdly to attend a rheumatologist annually to consult around other treatment, such as biologics, that may better treat an individual’s condition.
Dr Segal identified a range of alternate specific treatments to be determined on a case-by-case basis for sweating and hyperhidrosis. Dr Segal further identified that compression garments may exacerbate Ms Sanchez’s sweating and the sensory impact related to that.
Dr Segal did not support the use of Botox as a treatment and considered the risk of local spread of Botox resulting in unwanted paralysis. Dr Segal referred to Ms Sanchez’s facial movements being somewhat random, and stated that placement of injections can be ‘extremely difficult’.[34] Dr Segal recommended decreasing psychological stress and using medication as an alternative to Botox.
[34] EB1, page 664.
Dr Segal identified that the use of acrylic nails and eyelash extensions poses a risk of exacerbation of Ms Sanchez’s urticaria. Also, that the use of foundation and powder make up on the skin would not prevent urticaria and that ‘it would just cover it up’.
Dr Vijini Jayawardena, consultant psychiatrist
Dr Jayawardena reviewed Ms Sanchez in regard to her ASD diagnosis. On 29 October 2020 he concluded that Ms Sanchez has ASD - level two, and that she may benefit from psychotherapy for social and communication deficits. Also, that occupational support for future employment would be beneficial.[35]
[35] T Documents, T3.
Dr Jayawardena also supported diagnoses of PTSD and ADHD.
Ms Skye Kembery, occupational therapist
Ms Kembery prepared seven reports for Ms Sanchez between January 2021 and June 2023, recommending NDIS supports for Ms Sanchez and supporting her requests to the Agency.
Ms Kembery assessed Ms Sanchez in her activities of daily living and the six areas of functional capacity under section 24(1)(c) of the NDIS Act, set out at [32] above. Ms Kembery reported that Ms Sanchez was able to:
·walk at the shopping centre for an hour each day;
·wash, dress, groom, toilet, prepare meals and feed herself independently;
·engage in hobbies including painting classes and cooking;
·learn new skills; and
·manage a joint bank account for household bills.
Ms Kembery stated that Ms Sanchez was currently withdrawing from occupations and daily tasks due to the discomfort she experiences from sweating. Ms Kembery recommended Botox to minimise distress and increase time for other tasks, such as preparing meals and leisure activities.[36]
[36] EB1, HB11.
Mr David McLaurin, clinical psychologist
Mr McLaurin interviewed Ms Sanchez at her request for an ADHD assessment, and provided a report dated 26 October 2022.[37] Mr McLaurin agreed with a diagnosis of ADHD and recommended engagement with the following treatments:
·psychological therapy to work on skills development related to managing ADHD and also other psychological difficulties;
·an online adult ADHD support group; and
·a mental health treatment team.
[37] T Documents, T5.
Ms Rebecca Ramsey, speech pathologist
Ms Ramsey authored a plan review dated November 2022 to inform therapeutic input regarding Ms Sanchez’s referral for ongoing Speech Pathology input to work on social skills, specifically facial expressions, reading emotions and engaging in conversations.[38]
[38] T Documents, T6.
Ms Ramsey outlined that Ms Sanchez engaged in eight speech pathology sessions with speech pathologist Ms Farah Ezzat in 2021. Ms Ramsey reported undertaking seven sessions at once-a-month frequency in 2022 via telehealth only at Ms Sanchez’s request.
Ms Ramsey assessed that Ms Sanchez was able to respond to conversational questions with no difficulties, participate in conversation and express her thoughts, wants/needs and ideas to others.
Ms Victoria Davies/Flanigan, psychologist
Ms Davies provided psychotherapeutic interventions over 20 sessions to support Ms Sanchez in developing emotion regulation and social communication skills.
Ms Davis considered that Ms Sanchez’s mental health directly affected hr physical health and functional capacity. Therefore, she recommended ongoing therapeutic interventions to support, improve and build Ms Sanchez’s capacity for daily functioning and independence.
In her report dated 9 December 2022[39] Ms Davies recommended that Ms Sanchez have funding in her 12-month plan to receive:
·fortnightly psychological therapy, speech therapy and OT sessions;
·14 hours of support working services to support her to live independently; and
·24 hours per week of support working services to assist with community participation and transport including assistance to take her son to and from school.
[39] T Documents, T8.
Ms Kerryn van Wyck, Occupational Therapy Driver Assessor
Ms van Wyck assessed Ms Sanchez’s driving ability on 29 January 2024. Ms van Wyck recommended 10 lessons with a Specialised Driving Instructor, experienced in medical conditions and disability and that Ms Sanchez’s licence be amended to restrict her to drive in a 15-kilometre radius of her home.
Dr Natasha Alexander, clinical psychologist
Dr Alexander has provided 25 sessions between July 2023 and May 2024 of psychological treatment to support Ms Sanchez around relationships and understanding consent.
To further develop Ms Sanchez’s functional capacity, Dr Alexander recommended continued regular psychology sessions, regular support worker hours including assistance with housework and creating routines that help with emotional regulation, and support to help find alternative housing.
CONSIDERATION
The Tribunal’s task in reviewing the decision under review is to stand in the shoes of the original decision maker[40] and determine on the balance of evidence whether the requested supports satisfy the statutory criteria and should be funded by the scheme.
[40] Spires and National Disability Insurance Agency [2023] AATA 1230 at [6], citing Shi v Migration Agents Registration Authority (2008) 235 CLR 286, [37-38], [45-46] (Kirby J), [99] (Hayne and Heydon JJ), [140-143] (Kiefel J); Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60.
The statutory criteria, including the supports rules are based on a functional, practical assessment of what Ms Sanchez can and cannot do.[41] I have considered how the requested supports will address Ms Sanchez’s particular impairments and individual support needs[42] and enable her to live as normal a life as possible given her disability.[43]
[41] Mulligan v National Disability Insurance Scheme [2015] FCA 544 (Mulligan) at [56].
[42] National Disability Insurance Agency v KKTB, by her litigation representative CVY22 [2022] FCAFC 181 (KKTB) at [26]; See also WRMF at [141] and [151].
[43] MDCT and National Disability Insurance Agency [2022] AATA 697 (MDCT) at [62]; NJSC and National Disability Insurance Agency [2022] AATA 4449 (NJSC) at [104]; See the Rules, Legislation and Guidelines at [9-12], Reasons for Decision.
The evidence establishes that as a result of her disability Ms Sanchez experiences impairments in relation to the following:
·Anxiety arising as a result of sensory sensitivities including facial movements, facial sweat and oil production, bodily smells, tactile sensations and her appearance;
·Difficulties in self-management and self-care tasks, often as a result of anxiety-related ‘stimming’ behaviours;
·Difficulties in partner relationships;
·Back and knee pain;[44] and
·Urticaria;
Assessing requested supports
[44] EB1: HB5, HB7.
Botox
I am not satisfied that Botox is effective and beneficial under section 34(1)(d) of the NDIS Act. I accept the evidence of Dr Segal and Dr Verma, which was that Botox is not a clinically supported method of treating Ms Sanchez’s sensory issues. Dr Segal and Dr Verma both recommended psychological strategies as best-practice alternatives.
Make-up, synthetic hair, acrylic nails, eyelash extensions
I am not satisfied these requested supports satisfy section 34(1)(d) of the NDIS Act. Dr Verma recommended evidence-based treatment including extensive therapy to adequately address the ‘bigger picture’ of Ms Sanchez’s disability needs. Dr Segal also did not support these requests and recommended a range of best-practice alternatives. There was no evidence that Ms Sanchez has engaged with any of these alternatives.
Maths course and audible membership and credits
I am not satisfied that these supports are related to Ms Sanchez’s disability. There was no probative evidence that Ms Sanchez has a disability attributable to dyslexia and dyscalculia such that the access criteria under section 24(1) can be satisfied.[45]
[45] Rule 5.1b), supports rules; VGCP and National Disability Insurance Agency [2020] AATA 5107 at [27]-[28].
Clothing and shoes, compression underwear, anti-sweat products, perfume and essential oils
I am not satisfied that these items are disability-related supports[46] on the basis they are everyday expenses incurred by Australians regardless of their disability status, and therefore they are not funded by the scheme under rules 5.1(b), and 5.1(d).
[46] Rule 5.1(b), Supports rules.
I am not satisfied that Ms Sanchez has disability support needs attributable to her diagnoses of urticaria and hyperhidrosis. There was no evidence to establish that these impairments would satisfy the criteria under section 24(1) of the NDIS Act.
I accept that it is a matter of Ms Sanchez’s preference that she requests these supports, including that Ms Sanchez does not ‘like’ the way certain fabrics feel and also finds that other people smell ‘disgusting’. I also accept Dr Verma’s uncontradicted evidence that Ms Sanchez uses these items in a ‘maladaptive way’ and that there is no evidence base to support the use of these requested supports for Ms Sanchez’s particular conditions and support needs.[47]
[47] McLaughlin at [174]
Transport
The evidence establishes that Ms Sanchez is able to:
·drive her own car in a 15 km radius from her home;
·access her GP, local shops and son’s school within this radius;
·access funding for 10 specialised driving lessons;
·access techniques to assist her with the impacts of anxiety whilst driving;[48] and
·access funding for psychological support to manage her anxiety around driving.
[48] EB1, HB16.
I am satisfied that Ms Sanchez is able to travel independently and therefore does not meet the threshold requirements for transport assistance under rule 7.21 of the supports rules. I also accept the Agency’s submission that assistance to transport Ms Sanchez’s child to and from school is not a support related to Ms Sanchez’s disability under rule 5.1(b).
Increased support worker hours
I am satisfied the current support worker hours are sufficient for Ms Sanchez’s disability support needs.[49] There was no evidence or probative analysis of Ms Sanchez’s functional requirements to support the requested amount of support worker hours, and I cannot be satisfied that the request is a disability-related support under rule 5.1(b) of the supports rules.
[49] EB1, page 703; Agency’s closing submissions.
Conclusion
On the balance of evidence provided I am not satisfied that Ms Sanchez has demonstrated a nexus between her requested supports and her qualifying disability.[50] As a participant in the scheme, the supports to be provided to Ms Sanchez are intended to accommodate her particular impairments and to address them with a sufficient degree of benefit so as to enable her ‘to live as normal a life as possible’ having regard to her disability.
[50] Rule 5.1, Supports rules.
I note that, notwithstanding her disability Ms Sanchez is able to:
·Communicate her needs clearly orally and in writing;
·Interact socially with her friends, son and others when she chooses;
·Enjoy her multiple hobbies such as cross-stitch, sewing, sudoku, candle and perfume making, tarot, numerology, online computer games, and reading;
·Drive a motor vehicle in her stipulated radius distance from home;
·Physically walk unaided for an hour, multiple times a week, in an airconditioned shopping centre, albeit she prefers to do so in company with a friend;
·Bathe, groom and dress herself;
·Toilet independently;
·Prepare food for herself and her son;
·Order and pay for her online groceries;
·Manage her own YouTube tarot channel and tarot card making business by interacting with paying customers. Ms Sanchez reports that she speaks with her customers and oversees payments;[51] and
·Manage her own finances including her own bank account.
[51] Oral evidence of Ms Sanchez.
I am not satisfied that Ms Sanchez’s requested supports will assist her functional capacity. Indeed, there was limited probative evidence provided around the reduction in functional capacity that Ms Sanchez experiences. I make this non-binding observation only as it is the Agency’s role to reassess Ms Sanchez’s circumstances in light of appropriate legislative guidance and determine what supports, if any, are appropriately provided under the scheme.
I note that the legislative scheme contemplates a relatively high degree of precision in assessing what a person can or cannot do.[52] There is a clear focus on functional capacity and a person’s ability to independently undertake activities of daily living.[53] I observe on the evidence that Ms Sanchez is able to independently communicate, socially interact, learn, mobilise, undertake her self-care, and self-manage her own affairs.
[52] Mulligan at [55]
[53] Davis at [69].
I further note that Ms Sanchez currently receives funding for support worker assistance in excess of her requirements, as detailed at [58-60] above, and refer to the following obligation of participants to the Agency under the NDIS Act:
51 Requirement to notify change of circumstances
(1) A participant or a prospective participant must notify the CEO if:
(a) an event or change of circumstances happens that affects, or might affect, his or her access request, status as a participant or plan; or
(b) the participant or prospective participant becomes aware that such an event or change of circumstances is likely to happen.
The Agency must also have regard to relevant assessments conducted with respect to participants under section 33(5)(b) of the NDIS Act. I note the importance of comprehensive functional capacity assessments for the Agency to assess Ms Sanchez’s support needs.
DECISION
On the evidence, I cannot be satisfied that any of the requested supports are appropriately funded by the scheme.[54] I affirm the decision under review.
[54] HPSC and National Disability Insurance Agency [2021] AATA 727 at [85].
95. I certify that the preceding 94 (ninety four) paragraphs are a true copy of the reasons for the decision herein of Member S Smith.
................[SGD]..................................
Associate
30 September 2024
Dates of hearing:
2 and 3 September 2024
Applicant:
Ms Alana-Karene Sanchez
(Self-represented)
Solicitor for the Respondent:
Counsel for the Respondent:
Mr Jake Kyranis
Mr Joshua Sproule
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