SDCY and National Disability Insurance Agency - [2024] AATA 2858

SDCY and National Disability Insurance Agency [2024] AATA 2858 (8 July 2024)
Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL )

) No: 2023/0920

NATIONAL DISABILITY INSURANCE SCHEME DIVISION )
Re: SDCY
Applicant

And: National Disability Insurance Agency
Respondent
DIRECTION
TRIBUNAL: Deputy President Damien O’Donovan
DATE OF CORRIGENDUM: 9 August 2024
PLACE: Canberra

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the written reasons in this application as follows:
1. ‘Date of Decision’ on the front page is amended from 7 July 2024 to 8 July 2024.

………………..[SGD]…………………
Deputy President Damien O’Donovan
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s):2023/0920
Re:SDCY
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Deputy President Damien O'Donovan
Decision Date: 7 July 2024

Reasons Date: 26 July 2024
Place:Canberra

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal varies the decision made by the delegate of the respondent in January 2024, and approves a Statement of Participant Supports in the same terms as the Statement appearing at page 690 of the Tender bundle, subject to two modifications. First, the NDIS plan review date is varied to 8 January 2025. Second, capital supports are varied to include:
‘the reasonable estimated cost of converting bedroom 4 as originally configured (prior to any home modifications) from a carpeted room to a room with a floor covering which facilitates wheel chair and wheeled walker access.’
…………….[SGD]……………………..
Deputy President Damien O’Donovan
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – statement of participant supports –- whether identified supports should be included in statement of participant supports – decision under review varied
Legislation
Administrative Appeals Tribunal Act 1975 ss 42D
National Disability Insurance Scheme Act 2013 ss 3-4, 31, 33-34, 99-100
National Disability Insurance Scheme (Plan Management) Rules 2013
The National Disability Insurance Scheme (Supports for Participants) Rules 2013
Cases
McGarrigle v National Disability Insurance Agency [2017] FCA 308
National Disability Insurance Agency v McGarrigle [2017] FCAFC 132
National Disability Insurance Agency v WRMF [2020] FCAFC 79
REASONS FOR DECISION
Deputy President Damien O'Donovan
26 July 2024

The applicant is a participant in the National Disability Insurance Scheme. She has in place a plan prepared in accordance with the requirements of the National Disability Insurance Scheme Act 2013 (NDIS Act). Within that plan she has a number of funded supports which have been included in what is called her statement of participant supports, which has been approved by a delegate of the CEO of the respondent (Statement). There are however additional supports which the applicant wishes to have included in her Statement which the National Disability Insurance Agency (Agency) has been unwilling to fund.
When the applicant applied to the Tribunal for review there was a long list of supports which the applicant sought. The Tribunal’s alternative dispute resolution processes have brought about resolution of most of the issues between the parties. Two however remain outstanding. First, whether the alterations made to what is now the applicant’s bedroom constitute reasonable and necessary supports that can be included in her Statement. Second (in the alternative), whether the replacement of the flooring in what was once Bedroom 4, and is now the applicant’s bedroom, is a reasonable and necessary support. The first issue I have resolved on procedural grounds. The second requires close consideration of the facts and the statutory framework.
Bedroom Widening Project
Resolving the issues in relation to the widening of the applicant’s bedroom requires an examination of the procedural history of the matter.
On 29 November 2022 a delegate approved a statement of participant supports for the applicant. A participant’s plan commences when the statement of participant supports is approved.
The Statement funded $222,875.43 in supports and included a review date of 28 November 2024. There were however a number of supports which the applicant was seeking which were not included in the approved Statement. The applicant sought review. The applicant sought inclusion of the following supports:
(a)Capital home modifications for back garage entry door remote operation;
(b)Capital home modifications for a sensor light on the back ramp path;
(c)Capital home modifications for cabinet drawers for storage of items in the bathroom vanity;
(d)Capital home modifications for wardrobe storage that is lower and more accessible;
(e)Capital home modifications for door lever handles;
(f)Capital home modifications to install a step inside the garage to the house.
In a reviewable decision dated 10 February 2023 a delegate refused to approve a Statement which included those supports.
The applicant applied to the Tribunal for review.
As the matter progressed through the Tribunal’s alternative dispute resolution process the issues changed considerably.
In April 2023 the respondent agreed to include in the Statement all of the additional supports sought except the garage step. On 7 July 2023 a fresh statement of participant supports was approved with a review date of 5 January 2024. This Statement included the additional home modifications agreed to by the respondent. By August 2023 the applicant advised that she did not wish to pursue inclusion of the garage step in the Statement. However, the applicant advised that she wished to request home modifications to install hard slip resistant surface flooring in her bedroom.
At that point, the respondent believed that the bedroom in question had two different floor coverings. One being carpet, the other being tiles. The respondent’s position was that it was prepared to replace the carpet, but not replace all of the flooring in the room. The respondent was willing to replace the carpet because it needed a flooring that was more wheelchair friendly. However, the respondent was not satisfied that replacement of the tiled portion of the floor was reasonable and necessary given that the tiled floor was a suitable surface for using a wheelchair. It should also be noted that the applicant was not (and is not) wheelchair bound as a result of her impairments. She is able to walk short distances without a mobility aid, however when doing so there is a high risk of falls.
The parties were unable to agree on whether a full replacement of the flooring in the bedroom constituted a reasonable and necessary support and so the matter was listed for hearing. In order to ensure that the Tribunal retained a meaningful jurisdiction in relation to the content of the Statement, the decision under review was remitted to the respondent and an 8 July 2024 reassessment date was inserted in the approved Statement.
The matter was listed for hearing on 22 February 2024. On the morning of the hearing the respondent advised the applicant and the Tribunal that it was willing to include the entire floor replacement as a reasonable and necessary support in the Statement.
However, when the hearing commenced, the applicant advised that in her view, a report of an occupational therapist, Thomas Cleary, filed by the respondent on 6 February 2024, supported the inclusion of more significant modifications to her bedroom which she had self-funded during the life of her plan. She advised that she now wanted those modifications to be included in the Statement as reasonable and necessary supports. The applicant had previously sought to have those bedroom modifications funded in 2022, but the respondent had refused that request on 7 July 2022. The applicant never put the matter in issue again until 22 February 2024.
This late change in position created something of a dilemma for the Tribunal. If an applicant wishes to self-fund a support which has not been included in a Statement they can do so. However, the only effective way they can challenge the non-inclusion of the support and get a reimbursement if they are successful on review, is to ensure that the Statement which covers the period when the expenditure was incurred is the subject of the review decision. - (see RTRH and National Disability Insurance Agency [2022] AATA 205 at [163] for an explanation of the legal basis for this conclusion).
Consequently, if the Tribunal resolved the proceedings in February 2024 and finalised the Statement which covered the period in which the now claimed expense was incurred, the applicant would lose any effective ability to seek review of the non-inclusion of the support and obtain a re-imbursement.
In those circumstances I formed the view that it was safer not to finalise the matter at the listed hearing and for the Tribunal to retain jurisdiction to test whether it was indeed the case that the respondent’s evidence supported inclusion of the additional supports which the applicant was now seeking.
However, because the issue had never been raised in the Tribunal prior to the morning the matter was listed for final hearing, I was not prepared to re-open the issues and allow fresh evidence on an entirely new question to be tested in circumstances where the applicant could have put the support in issue at any point since its non-inclusion in 2022.
I was however satisfied that there was an ambiguity in the report of Thomas Cleary and that a further report should be obtained from him to determine whether his report did, as the applicant suggested, support the inclusion of a full modification (which was already complete) of what was identified as Bedroom 4. .
The matter was listed for a further hearing on 17 June 2024.
A supplementary report was obtained from Thomas Cleary in which he clarified whether his earlier report supported the conclusion that the modifications to Bedroom 4 were a reasonable and necessary support.
That supplementary report dated 29 May 2024 relevantly provided as follows:
…I concluded that SDCY did not require the removal and relocation of the wall in Bedroom 4. There were a number of reasons for the conclusion…
…the need to widen the bedroom (bedroom 4) was made on the basis that SDCY needs to have assistance from support workers on both sides of the bed and/or needs to use a wheelchair to transfer in and out of the bed. Both of these are inconsistent with the functional tolerances outlined in the reports from Ms Rowena Clarke (occupational therapist)…
…SDCY’s mobility is noted to be variable, and reports from Ms Rowena Clarke…has reported that SDCY is mobile without a walking aid up to 20 metres and is able to walk up to 100 metres with a four-wheeled walker. She is only required to use a wheelchair later in the day when she is fatigued. She was noted to walk outdoors either independently or with use of a four-wheeled walker for up to 20 meters on level surfaces…
SDCY’s bed mobility was assessed by Ms Clarke in the same report, and on page 8 she stated that SDCY is independent with standing transfers. It is noted that she had some difficulty with bed mobility; however there is no indication that she requires any physical assistance to get in and out of bed. It is noted that ordinarily, a King Single size bed would be considered sufficient; however SDCY was supplied with a Queen size bed due to her concerns about her body positioning and safety.
…
While SDCY is reported as using a wheelchair at home when fatigued, if she needed to use this to get to her bedroom in the evening, she would need to perform a turn while seated in her wheelchair. ..if SDCY did need to perform a 180 degree turn, there is sufficient space to do so. I do not consider it fair and reasonable for such a large renovation to occur when she would ordinarily walk to her bedside and transfer in and out independently.
It is clear from this that Mr Cleary did not, either in his earlier report or at all, support the widening of Bedroom 4 which the applicant had undertaken.
In circumstances where the issue was raised for the first time at the hearing in February 2024 and pressed on the basis that the evidence already before the Tribunal supported the conclusion that the widening of the bedroom was a reasonable and necessary support – a submission which was unsustainable upon receiving clarification of Mr Cleary’s view – I determined that as a matter of procedure I was not prepared to consider the merits of the widening of bedroom 4 renovation and whether it was a reasonable or necessary support.
Exercising my power under section 25(4A) of the Administrative Appeals Tribunal Act 1975, I determined that the scope of the issues which I would consider did not include whether the room widening was a reasonable and necessary support. The basis for this ruling was that the applicant had from 16 February 2023 when she applied to the Tribunal for review until 22 February 2024 to raise the issue. Despite this she failed to raise the issue until the day of the hearing and after the respondent had indicated that the only issue in dispute between the parties could be resolved in her favour. The issue was raised on the basis that there was already evidence before the Tribunal which supported the inclusion of the support in the Statement. That turned out not to be the case.
In those circumstances it is appropriate to exclude the issue from the Tribunal’s final consideration.
Flooring Issue
Between the first listing of the matter for hearing on 22 February 2024 and the final hearing conducted on 17 June 2024, it became clear to the respondent that contrary to its understanding, the flooring in Bedroom 4 had already been completely replaced in the context of the widening of Bedroom 4.
This discovery resulted in a change of the respondent’s position as communicated to the applicant on 21 February 2024 that it was prepared to fund the flooring change in Bedroom 4. The respondent now submits that the flooring modifications to Bedroom 4 do not satisfy the reasonable and necessary criteria in section 34. Accordingly, the applicant must satisfy the Tribunal that flooring modifications in Bedroom 4 represent reasonable and necessary supports that should be included for funding in her Statement.
The applicant contends that the floor changes are reasonable and necessary. She notes that the Agency has accepted that she needs to have non-slip flooring appropriate for a wheelchair or walker in that room. In these circumstances it is reasonable for her to have changed the flooring, whether or not the remainder of the changes to the room are regarded as reasonable and necessary.
The statutory task
The decision which the Tribunal is called upon to make is most briefly described as a decision to approve a statement of participant supports in accordance with section 33(2) of the NDIS Act. The Statement forms part of the applicant’s plan, which is a document which must be prepared once a person becomes a participant in the NDIS.
30.There are a significant number of relevant sections in the NDIS Act, NDIS Rules as well as guidelines which are relevant to my consideration.
Section 3 sets out the objects of the NDIS Act:
Section 3
(1) The objects of this Act are to:
(a) in conjunction with other laws, give effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12); and
(b) provide for the National Disability Insurance Scheme in Australia; and
(c) support the independence and social and economic participation of people with disability; and
(d) provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme launch; and
(e) enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and
(f) facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability; and
(g) promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community; and
(h) raise community awareness of the issues that affect the social and economic participation of people with disability, and facilitate greater community inclusion of people with disability; and
(i) in conjunction with other laws, give effect to certain obligations that Australia has as a party to:
(i) the International Covenant on Civil and Political Rights done at New York on 16 December 1966 ([1980] ATS 23); and
(ii) the International Covenant on Economic, Social and Cultural Rights done at New York on 16 December 1966 ([1976] ATS 5); and
(iii) the Convention on the Rights of the Child done at New York on 20 November 1989 ([1991] ATS 4); and
(iv) the Convention on the Elimination of All Forms of Discrimination Against Women done at New York on 18 December 1979 ([1983] ATS 9); and
(v) the International Convention on the Elimination of All Forms of Racial Discrimination done at New York on 21 December 1965 ([1975] ATS 40).
Section 4 sets out what are described as General principles guiding actions under this Act. Section 4(11) of the NDIS Act provides:
Reasonable and necessary supports for people with disability should:
(a) support people with disability to pursue their goals and maximise their independence; and
(b) support people with disability to live independently and to be included in the community as fully participating citizens; and
(c) develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment.
This is relevant when considering whether to approve a statement of participant supports.
Section 31 relevantly provides:
Principles relating to plans
The preparation, review and replacement of a participant’s plan, and the management of the funding for supports under a participant’s plan, should so far as reasonably practicable:
(a) be individualised; and
(b) be directed by the participant; and
(c) …; and
(ca) …
(d) …; and
(da) …; and
(e) …; and
(f) …; and
(g) be underpinned by the right of the participant to exercise control over his or her own life; and
(h) advance the inclusion and participation in the community of the participant with the aim of achieving his or her individual aspirations; and
(i) maximise the choice and independence of the participant; and
(j) facilitate tailored and flexible responses to the individual goals and needs of the participant; and
(k) provide the context for the provision of disability services to the participant and, where appropriate, coordinate the delivery of disability services where there is more than one disability service provider.
Section 33 provides:
(2) A participant’s plan must include a statement (the statement of participant supports), prepared with the participant and approved by the CEO, that specifies:
(a) …
(b) the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme; and
(c) the date by which or the circumstances in which, the Agency must reassess the plan under Division 4; and
…
(3) The supports that will be funded or provided under the National Disability Insurance Scheme may be specifically identified in the plan or described generally, whether by reference to a specified purpose or otherwise.
(4) …
(5) In deciding whether or not to approve a statement of participant supports under subsection (2), the CEO must:
(a) have regard to the participant’s statement of goals and aspirations; and
(b) have regard to relevant assessments conducted in relation to the participant; and
(c) be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and
(d) apply the National Disability Insurance Scheme rules (if any) made for the purposes of section 35; and
(e) have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and
(f) have regard to the operation and effectiveness of any previous plans of the participant.

Section 34 provides:
(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.
(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).
Section 99 sets out the decisions which are reviewable decisions for the purposes of the NDIS Act. In this case the relevant decision is identified at s 99(d) being:
A decision under subsection 33(2) to approve the statement of participant supports in the plan.
Reviewable decisions can be reviewed within the Agency (s 100) and applications can be made to the Tribunal in respect of any decision reviewed under s 100 (s 103).
In the Support Rules, a number of rules are relevant to this decision.
Rule 3.1 provides as follows:
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).
Rule 3.2 provides:
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.
Rule 3.3 provides:
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.
Rule 4.1 provides:
When deciding whether or not to approve a statement of participant supports under section 33 of the Act, the CEO is to:
(a)   Identify the participant’s goals, aspirations, strengths, capacity, circumstances and context; and
(b)   Assess activity limitations, participation restrictions and support needs arising from a participant’s disability; and
(c)   Assess risks and safeguards in relation to the participant; and
(d)   Relate support needs to the participant’s statement of goals and aspirations.
There are also rules contained in the National Disability Insurance Scheme (Plan Management) Rules 2013 (Plan Management Rules) which are relevant to deciding how supports are to be described within a statement of participant supports. These are:
6.1     A participant’s statement of participant supports (referred to as the statement in this Part) specifies, among other things:
(a)     the general supports (if any) that will be provided to, or in relation to, the participant; and
(b)     the reasonable and necessary supports (if any) that will be funded under the NDIS.
6.2     Some supports in the statement may be described generally, whether by reference to a specified purpose or otherwise. For such supports, the participant will have a high degree of flexibility over the implementation of the supports.
6.3     In contrast, some supports may be specifically identified in the statement. Such supports will have to be purchased or provided in the way described in the statement.
Description of a support in a participant’s statement
6.3A Paragraphs 6.4 to 6.7 and 6.9 set out rules that apply to the description of a support in a participant’s statement.
Whether supports should be specifically identified or described generally
6.4     When deciding whether the support should be described generally or more specifically in the participant’s statement, the CEO is to have regard to the following:
(a)     the cost of the support;
(b)     any expected return or saving in costs from providing the support;
(c)     any risks associated with the supply of the support such as the need for the support to conform to State or Territory laws;
(d)     whether achievement of other goals in the plan or the effectiveness of other supports is contingent on a particular support being procured or used;
(e)     whether the participant’s disability requires a specialist, evidence-informed support provided by a qualified person or a particular delivery mode;
(f)      whether the participant accessed the NDIS by satisfying the early intervention requirements.
Operational Guidelines
To assist with consistency in decision making the respondent has also prepared a number of Operational Guidelines.
The guidelines to which I have had regard are:
(a)Reasonable and Necessary Supports dated 6 October 2023;
(b)Home modifications – Guidance for Builders and Designers.
The Reasonable and Necessary Supports Guideline includes the following:
How do we describe support in your plan?
We divide your supports into 4 different budgets:
• Core supports
…
• Capacity building supports
…
• Capital supports
Includes high-cost assistive technology, equipment, vehicle modifications, home modifications and specialist disability accommodation. Capital supports are stated. You can only use this funding to buy approved individual supports in this support category.
…
Each budget is divided into a number of support categories. Support categories have more detail about what supports you can buy with your funding. We can describe the support categories in your plan as one of the following:
• Flexible: Under the law for the NDIS, this is when we describe supports in a category generally. You have greater flexibility over what disability supports you can buy within the description of the support. When we describe your support categories as flexible, you can usually choose what supports you buy within the descriptions for each support category.
• Stated: Under the law for the NDIS, this is when we describe the supports in a support category specifically. It means you must buy supports in the way we have described in your plan. We sometimes call this a fixed support in your plan.
I have also considered the Home Modifications Guidance for Builders and Designers. It relevantly provides:
Typical scope of works Modifications area NDIS approved and funded modifications must be confined to the immediate room or area of the participant’s dwelling that requires modifications. Builders must limit the disturbance to existing walls, floor and ceiling/roof to the greatest extent possible during the home modifications. Any disturbed areas or components of the participant’s dwelling shall be made good to match existing finishes. Areas of painting of walls, ceiling, doors or architraves must be confined to the room or area being modified. The builder should carefully consider the areas of the dwelling which would be reasonably disturbed as a result of the works being carried out, during the initial assessment and quote.
The relevant case law
The Federal Court has given consideration to the statutory task of approving statements.
In National Disability Insurance Agency v McGarrigle [2017] FCAFC 132 Justice Mortimer appeared to find that once it was decided that a support was a reasonable and necessary support, then the scheme requires that it will be funded. On appeal, the Full Court determined that Justice Mortimer had not reached that conclusion and that she did not depart from the statutory language of section 33. Accepting that at face value it is appropriate to return to the statutory words rather than consider any gloss that has been put on them.
The Full Court also considered issues relevant to section 33 in the matter of National Disability Insurance Agency v WRMF [2020] FCAFC 79. In its judgment, the Court resisted determining what could be regarded as the outer limits of the phrase ‘reasonable and necessary supports’, but made a number of observations about the statute. Of most relevance are the following:
(a)In the phrase ‘reasonable and necessary supports’ the Parliament has chosen to use a composite phrase rather than to stipulate two distinct requirements ([149]);
(b)Determining the contents of a participant’s plan and what are reasonable and necessary supports is a fact-intensive exercise. The exercise is highly individualised and there will be an area of decisional freedom ([152]);
(c)The question of whether a support is a ‘reasonable and necessary support’ is to be approached by examining the particular circumstances of the applicant ([157]);
(d)There may be a statutory discretion located in section 33(2) but resolution of that question should await a case where it has been properly raised before the Tribunal ([167]);
(e)The statutory word ‘support’ includes within it the concept of assistance but other synonyms are also likely to be apt including ‘care’ ([172]);
(f)There is a connection between the description in section 4(11) of what reasonable and necessary supports should do and the reaching of satisfaction of the matters specified in section 34, and a connection with some of the objects in section 3 ([180]);
(g)The matters in section 34 are not merely mandatory considerations but are in the nature of criteria, which the decision makers must be satisfied of on the material before it;
(h)Section 34 does not define the phrase ‘reasonable and necessary supports’ ([206]);
(i)Section 34(1)(b) does not require the specific identification of an activity which a support would assist a participant to undertake ([215]), and, it can be inferred that indirect assistance in social participation can be sufficient to meet that criterion.
When should a support be included in a Statement as reasonable and necessary?
In answering this question some things can be stated with certainty.
First, there is a procedural obligation on the CEO (and the Tribunal standing in her shoes) to prepare the Statement ‘with the participant’. The Tribunal’s hearing processes accommodate this requirement. This implies input from the participant but ultimately it is the CEO or the Tribunal which makes the final decision.
Second, only ‘reasonable and necessary supports’ can be specified for funding. So much is clear from the words of section 33(2)(b).
Third, the reasonable and necessary supports which are specified in the Statement will be funded. This however implies that there can be reasonable and necessary supports which are available to be specified but which the decision maker can exclude from specification and funding. This is the point at which the decision-maker must exercise discretion.
Fourth, in determining what supports should be specified (and form part of the statement ultimately approved) the decision maker must:
(a)apply the principles outlined in section 31;
(b)have regard to the matters listed in paragraphs 33(5)(a), (b), (e) and (f);
(c)be satisfied of the matters in section 34 in relation to the funding of the support;
(d)apply the Scheme rules.
What is a reasonable and necessary support?
As noted above only reasonable and necessary supports can be specified. Given how central this concept is to the funding which flows to participants, it is surprising that Parliament opted not to define the expression directly.
The Agency has adopted an approach whereby it considers whether a support meets what are called in the Guidelines ‘funding criteria’. To meet the funding criteria a support must meet both of the following criteria:
(a)It must not be a type of support the law says the Agency cannot fund or provide (for example by reason of Support Rule 5.1(a)); and
(b)It must meet the reasonable and necessary criteria which are the matters set out in section 34(1).
The Guidelines do not grapple with the scope of the concept of ‘reasonable and necessary supports’. Indeed the Guidelines ignore the possibility that the phrase ‘reasonable and necessary supports’ confines the supports to a class which is more narrow than those supports which meet the thresholds specified in section 34. However, it seems likely that in many cases, attempting to define precisely what is a ‘reasonable and necessary support’ is not necessary or helpful and it is better to direct attention to the matters in section 34.
Findings on material questions of fact relevant to the flooring issue
At the outset I want to make clear that the Agency should not be liable for any flooring costs rendered necessary by the decision to widen Bedroom 4. However, that does not mean that none of the flooring changes constitute a reasonable and necessary support. The section of the tiled floor that needed to be replaced due to the bedroom widening project is not a reasonable and necessary support. However, regardless of the decision to widen the bedroom, the carpeting in Bedroom 4 needed to be replaced as a result of the applicant’s disability.
When the applicant became a participant in the NDIS, she had a four-bedroom house. Bedroom 4 had the dimensions 3530mm x 2700mm. The floor of Bedroom 4 was carpeted. At some point prior to May 2023 the applicant decided to modify Bedroom 4 so that it became the main bedroom in the house. A wall was moved so that the dimensions of the room changed to 3530mm x 4240mm. As a result, the bedroom ended up with a carpeted section in the same dimensions as the original Bedroom 4, and this abutted a tiled section that was the original flooring from the rumpus room from which space was taken to increase the size of the bedroom.
The applicant subsequently changed all the flooring in the house to a non-stick tile which allowed the smooth operation of a 4 wheeled walker (4WW) or a wheelchair and eliminated trip hazards. The tile chosen was a premium tile with a very high non-slip rating.
Whether or not the applicant made any other changes to the house, the need to eliminate carpet from Bedroom 4 was supported by evidence from the applicant’s occupational therapist Rowena Clarke. In a report dated 11 September 2023 Ms Clarke reported:
Since walking is increasingly difficult for SDCY, (as she cannot feel where her feet are or what they are touching), and she has decreased coordination, as well as decreased strength and proprioception in her lower limbs down to her feet. Therefore, SDCY is at a higher risk of falls, reporting to be unsteady at times leading to trips and near misses, with falls in the recent past. It is also important to note that SDCY’s walking ability fluctuates throughout the day due to fatigue and decreased strength/stamina requiring energy conservation. Hence, later each day SDCY relies more on mobility aids, as walking nil aids becomes unsteady and effortful. SDCY has a greater reliance on the 4WW and even increased wheelchair mobility indoors at times. Therefore, minimizing uneven flooring, as caused by transitions between floor surfaces, is imperative for safe mobility for SDCY, especially for falls prevention while using a 4WW…her existing flooring severely limits SDCY’s mobility and requires replacement as it is difficult for SDCY to safely mobilise either by walking with her 4WW or with a manual wheelchair (MWC) over soft carpet.
In its statement of facts issues and contentions filed on 7 December 2023 the respondent conceded that:
…the replacement of the carpet in the bedroom is reasonable and necessary however replacement of the tiles is not reasonable and necessary. As such, the respondent is only agreeable to funding the replacement of flooring to the carpeted area of the bedroom, with a more wheelchair compatible material such as Vinyl…the clinical need to replace the existing soft carpet with a more wheelchair compatible and suitable material such as vinyl is acknowledged…works that may not meet NDIS funding criteria include replacement of floor coverings, except in situations ‘where the existing floor covering severely limits mobility or where sections of flooring require replacing due to other required modifications.
Accordingly, both parties accept that carpet is not an appropriate flooring material for a person using a wheelchair or a 4WW. Provided the removal and replacement meets the statutory criteria, it should be included in the Statement.
Applying the statutory criteria
When regard is had to the applicant’s goals and aspirations, flooring changes to Bedroom 4 meet the requirements specified in section 34 for inclusion as a funded support in a Statement.
First, the support will assist the applicant to pursue her goal of being ‘safe and supported in her own home’ (s34(1)(a)). Ensuring that she can move safely through all of the rooms in her house, using assistive technology and without any trip hazard is consistent with that goal. The decision to remove heavy carpet as a flooring material from Bedroom 4 and ensuring a smooth transition between rooms to eliminate any trip hazard is consistent with that goal.
Second, the support will facilitate the applicant’s social and economic participation by allowing her to make safe use of all of her house (s34(1)(b)). Third, the supports represent value for money. Reducing the risk of a fall by increasing the ease with which assistive technology can be used, and eliminating trip hazards is an efficient means of ensuring that the applicant can continue to live independently. In that sense the support represents value for money (s34(1)(c)). The respondent however has submitted that in considering the question of value for money I should be considering the specific invoices which the applicant has submitted for the work which she had done - noting that they are for undifferentiated building work which includes work which has not been accepted as a reasonable and necessary support. The respondent contends on that basis that I am not able to conclude whether any of the specific work done represents value for money.

In my view this is an unduly narrow approach to the question of value for money. When it is accepted that removing heavy carpet and replacing it with a smooth surface which integrates without a trip hazard with the rest of the floor is appropriate, the applicant is entitled to an amount that allows her to make that change in a reasonable and cost effective way.
The respondent also objects to such an inclusion on the basis that it is difficult to determine whether the flooring material actually chosen represented value for money. I am not satisfied that that is a question that needs to be answered precisely in each case prior to inclusion of a support in the Statement. Section 33(3) of the NDIS Act allows the supports that will be funded to be specifically identified or described generally. A support can be described generally, specifying the criterion that it needs to meet, without affixing a specified sum to the support. The respondent can then determine what support is needed in practical terms and later determine what amount is reasonable to cover – that amount would need to represent value for money. If an applicant decides for other reasons to implement a more expensive solution than is necessary to meet the description of the support specified in the Statement, there would be no obligation on the part of the Agency to provide funds over and above what it is reasonable to cover.
I am satisfied that a support described in a general way represents value for money and should be included in the Statement. If the applicant has chosen a premium solution over and above what would be reasonable to achieve a smooth transition from the hall to what was Bedroom 4, then she may not be entitled to all of the costs she has incurred in upgrading the carpeted area. But that is a question which can be resolved by the Agency making its own assessment of a reasonable cost. It is not a basis for finding that the support is not value for money.
The evidence supports the conclusion that the support will be (and has been) effective and beneficial to the applicant in that it facilitates her safe mobility at all times of the day around her house (s34(1)(d)). There is no other obvious person who should be providing the support (s34(1)(e)). A support of this kind is most appropriately funded or provided through the National Disability Insurance Scheme (s34(1)(f)). The respondent has never suggested that it is not the most appropriate agency to be delivering a support of this nature.
I am satisfied that the support meets the statutory requirements in section 34 and it is appropriate to include in the Statement a support described as the change in flooring in Bedroom 4 (as originally configured) from a carpeted room to a room with a reasonably priced floor covering which facilitates wheel chair and wheeled walker access and which does not create a trip hazard.
In the present case, the fact that the applicant ultimately went a different way and expanded the bedroom and replaced the flooring with tiles of her choice does not result in the respondent being bound to pay for what was done, only to pay for what it was reasonable for the applicant to do having regard to the support described in the Statement. Just as a participant might, if a support were funded prospectively, decide to finish a capital upgrade to a higher standard with their own funds, a participant who has committed their own funds should not be deprived of the reasonable amount of funding for a legitimately acquired support, merely because the work ultimately done went beyond what it was appropriate to approve as a reasonable and necessary support but which none the less delivered a support which it was appropriate for the respondent to fund.
In these circumstances my decision is as follows:
(a)I approve a statement of participant supports in the same terms as the Statement appearing at page 690 of the Tender Bundle, subject to two modifications. First, the NDIS plan review date is 8 January 2024. Second, capital supports are amended to include the following: ‘the estimated cost of converting bedroom 4 as originally configured from a carpeted room to a room with a reasonably priced floor covering which facilitates wheelchair and wheeled walker access’.

I certify that the preceding 74 (seventy-four) paragraphs are a true copy of the reasons for the direction herein of Deputy President Damien O’Donovan.

....................[SGD]......................
Associate
Dated: 26 July 2024

Date of hearing: 17 June 2024

Applicant:

Solicitor for the Respondent:

Counsel for the Respondent:

Self-represented

Ms Isabel Carmody (Makinson D’Apice)

Ms Aditi Rao

ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2023/0920
NATIONAL DISABILITY INSURANCE SCHEME DIVISION	)