Sanchez and National Disability Insurance Agency

Case [2024] AATA 3441

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 2013

Cases

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 1771

Secondary Materials

NDIS - Operational Guidelines - Reasonable and necessary supports, as of 6 October 2023

REASONS FOR DECISION

Member S Smith

30 September 2024

INTRODUCTION

  1. 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.

  2. 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.

  3. 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.

  4. 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

  5. Ms…

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AGLC
Sanchez and National Disability Insurance Agency [2024] AATA 3441
Case
[2024] AATA 3441
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Ms Sanchez against a decision of the National Disability Insurance Agency (NDIA) regarding her eligibility for certain supports under the National Disability Insurance Scheme (NDIS). The core of the dispute revolved around whether the requested supports were "reasonable and necessary" in accordance with the *National Disability Insurance Scheme Act 2013* (Cth) and relevant operational guidelines, particularly in relation to Ms Sanchez's autism spectrum disorder. The Administrative Appeals Tribunal was tasked with reviewing the NDIA's decision.

The Tribunal was required to determine whether the supports requested by Ms Sanchez were related to her disability, whether they would assist her to pursue her NDIS plan goals, and whether they represented value for money. Specifically, the Tribunal had to consider if the requested supports were evidence-based, likely to be effective and beneficial, and if they were supports that should otherwise be provided through reasonable adjustments by other entities. A key legal issue was the interpretation of "reasonable and necessary supports" as defined by the NDIS Act and the NDIA's operational guidelines, including the requirement for a nexus between the support and the participant's disability.

In its reasoning, the Tribunal emphasised the NDIS Act's focus on a participant's functional capacity and the provision of supports to enable participation in personal and community life. It applied the criteria outlined in the NDIA's Operational Guidelines, which require supports to be related to the disability, help achieve plan goals, be value for money, and be evidence-based. The Tribunal found that Ms Sanchez had not demonstrated a sufficient nexus between her requested supports and her qualifying disability, nor had she provided sufficient evidence of a reduction in her functional capacity that would necessitate the requested level of support. The Tribunal noted Ms Sanchez's demonstrated ability to independently communicate, socialise, manage her daily living activities, and conduct business, which indicated a significant level of functional capacity.

Ultimately, the Tribunal affirmed the NDIA's decision, finding that Ms Sanchez had not satisfied the criteria for reasonable and necessary supports. The Tribunal concluded that the existing support worker hours were sufficient for Ms Sanchez's disability support needs and that the requested additional hours were not demonstrably linked to her disability or likely to improve her functional capacity in a way that warranted NDIS funding. The Tribunal also noted Ms Sanchez's obligation under the NDIS Act to notify the CEO of any changes in circumstances that might affect her plan.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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 - thismeans 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