Sewell and National Disability Insurance Agency

[2023] AATA 2783

Sewell and National Disability Insurance Agency [2023] AATA 2783 (31 August 2023)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number:          2021/5932

Re:Christopher Lee Sewell

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Member P Smith

Date:31 August 2023

Place:Sydney

Pursuant to subsection 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision under review and remits the matter to the Chief Executive Officer of the National Disability Insurance Agency with a direction that the following reasonable and necessary supports be included in the Applicant’s Plan over a 12-month period:

1.    Funding in the amount of $16,900.00 for the construction and installation of a pathway to be included in the Applicant’s Plan as recommended by Deborah Hammond, Occupational Therapist in her Functional Capacity Assessment Report dated 28 July 2022 and by Peter Nasr, Building Consultant in his Feasibility Assessment Report dated 28 July 2022.

2.    Funding in the amount of $12,300.00 for minor modifications to the Applicant’s ensuite bathroom as recommended by Deborah Hammond, Occupational Therapist in her Functional Capacity Assessment Report dated 28 July 2022 and by Peter Nasr, Building Consultant in his Feasibility Assessment Report dated 28 July 2022.

3.    Funding in the amount of $14,780.00 to modify the Applicant’s home for minor modifications as recommended by Deborah Hammond, Occupational Therapist in her Functional Capacity Assessment Report dated 28 July 2022 and by Peter Nasr, Building Consultant in his Feasibility Assessment Report dated 28 July 2022:

(a)Changing the door hardware on internal and external doors;

(b)Changing light switches and power points to large format switches;

(c)Installing a sensor light for night time bathroom use; and

(d)Using wireless charging for electronic devices.

4.    As agreed between the parties, funding to the Applicant’s Capacity Building Supports Budget for nine x 30-minute podiatry visits per year (4.5 hours per year), plus the amount of $120.00 for an annual biomedical assessment and the amount of $160.00 for an annual podiatrist report.

5.    Funding to the Applicant’s Capacity Building Supports Budget for one hour of physiotherapy per month (12 hours per year), plus three hours for report writing and consultation with other health professionals (15 hours in total).

...............................[SGD].........................................

Member P Smith

CATCHWORDS

NATIONAL DISABILITY INSURANCE SCHEME DIVISION – Application to the Tribunal to review a decision of the National Disability Insurance Agency to approve a statement of participant supports under subsection 33(2) of the National Disability Insurance Scheme Act 2013 (Cth) – whether the Applicant’s request for approval to install three external ramps or pathways with handrails to three outside areas to the Applicant’s home meets the reasonable and necessary criterion test – whether the Applicant’s request for approval to tile the outside area of his swimming pool with either travertine or porcelain tiles meets the reasonable and necessary criterion test – whether the Applicant’s request for approval to modify his main bathroom and toilet meets the reasonable and necessary criterion test – whether the Applicant’s request for approval for a Thermomix meets the reasonable and necessary criterion test – whether the Applicant’s request for the approval of a complete home automation system meets the reasonable and necessary criterion test – whether the Applicant’s request for approval for an additional one hour per week of physiotherapy support with a physiotherapist meets the reasonable and necessary criterion test – whether the Applicant’s request for the approval of two hours per week of exercise physiology support with an exercise physiologist meets the reasonable and necessary criterion test – whether the Applicant’s request for the approval of 13 hours per week of 1:1 support for in-home assistance with daily living activities meets the reasonable and necessary criterion test – whether the Applicant’s request for approval for four hours per week of 1:1 support for the Applicant to access the community for social participation in the community meets the reasonable and necessary criterion test – where the Applicant did not own a home when he became a participant in the National Disability Insurance Scheme (the NDIS) – where the Applicant 14 months later decided to purchase a house without involving the Agency as required by the National Disability Insurance Scheme –– Including Specific Types of Supports in Plans Operational Guideline – Home Modifications – consideration of the prudent expenditure of public funds where the Applicant is requesting the use of public funds for his home modification supports in circumstances where he did not involve the Agency in the decision to purchase this property – whether the Applicant’s decision to purchase his home without involving the Agency is a matter that the Tribunal should take into consideration in determining whether the home modification supports represent value for money for the purpose of subsection 34(1)(c) of the NDIS Act – whether the Applicant’s reporting of pain is attributable to his disability of Charcoat Marie Tooth Disease - whether the Applicant’s house can feasibly be made wheelchair accessible – where the expert opinions of the parties’ Occupational Therapists and the Respondent’s Building Consultant differ in opinion with regard to home modifications – consideration of what weight the Tribunal should give the expert evidence of the parties’ witnesses – whether sufficient expert evidence provided in support of all requested supports - decision under review set aside and remitted to the Chief Executive Officer of the Respondent for reconsideration directing that funding be allocated to the Applicant’s Plan for reasonable and necessary supports

LEGISLATION

National Disability Insurance Scheme Act 2013 (Cth), ss 3, 4, 9, 31, 32, 33(2), 34, 35, 36, 43, 44, 48, 100(2), 100(6)(b), 117, 118, 119, 209(1)

Administrative Appeals Tribunal Act 1975 (Cth), ss, 40A(1)(b), 43(1)(c)(ii)

National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022 (Cth)

CASES

National Disability Insurance Agency v WRMF (2020) 276 FCR 415

LZMX and National Disability Insurance Agency [2021] AATA 378
McGarrigle v National Disability Insurance Agency [2017] FCA 308; (2017) 252 FCR 121

JQJT and the National Disability Insurance Agency [2016] AATA 478

SECONDARY MATERIALS

Secondary Materials

National Disability Insurance Scheme (Plan Management) Rules 2013, Part 3
National Disability Insurance Scheme (Supports for Participants) Rules 2013, Parts 1, 3 5 and 7
National Disability Insurance Scheme – Operational Guidelines – Planning

National Disability Insurance Scheme –– Including Specific Types of Supports in Plans Operational Guideline – Home Modifications

REASONS FOR DECISION

Member P Smith

31 August 2023

INTRODUCTION

1. This is an application to review[1] a decision made by the National Disability Insurance Agency (the Respondent) dated 28 July 2021 to vary[2] an earlier decision made by a delegate of the Chief Executive Officer (the CEO) of the Respondent on 5 May 2021 to approve a statement of participant supports (SOPS)[3] in a participant’s plan under subsection 33(2) of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act).

   [1] The Applicant lodged his application for review with the Tribunal on 25 August 2021. See T1 of the T-documents. 

   [2] See subsection 100(6)(b) of the National Disability Insurance Scheme Act 2013 (Cth).

   [3] See T7 of the T-documents.

2. The Applicant, Christopher Lee Sewell, became a participant in the National Disability Insurance Scheme (the NDIS) on 11 May 2018[4] on account of his diagnosis of Charcoat Marie Tooth Disease (CMTD). CMTD is an inherited neurological lifelong condition affecting both motor and sensory nerves causing structural and sensory problems with the muscles in the feet, legs, arms and hands[5].

   [4] See page 8 of the Respondent’s Internal Review Decision dated 28 July 2021 at T1A of the T-documents.

   [5] This is documented by Melissa Wright, the Applicant’s Occupational Therapist in her IOH Functional Assessment Report dated 5 August 2021. See page 17 of T1B of the T-documents.

3. The Applicant was given notice on 5 May 2021 of the Respondent’s decision to approve a SOPS in the Applicant’s Plan under subsection 33(2) of the NDIS Act for a 12-month period commencing on 5 May 2021 and ending before 5 May 2022[6]. This decision was made following the completion of a reassessment of the Applicant’s previous Plan[7]. The Applicant subsequently made a request[8] to the Respondent on 18 May 2021 in which he requested that the Respondent conduct an internal review of the delegate’s decision[9]. For the purpose of this request, the Applicant confirmed on 9 July 2021[10] during a telephone conversation that ensued between him and the person who conducted the internal review that the Applicant sought 16 supports he argued were reasonable and necessary and thus should be included in his Plan and funded under the NDIS. The Applicant also requested a change to the way in which the funding for supports under his Plan was managed[11]. The Applicant’s previous Plan specified that funding in respect of only three supports was to be self-managed[12]. The change requested by the Applicant was made so that all supports funded under his Plan could be wholly self-managed[13].

   [6] See page 234 of T28 of the T-documents.

   [7]See T27 of the T-documents for a copy of the Applicant’s previous Plan. The Chief Executive Officer of the National Disability Insurance Agency had to conduct a reassessment of the Applicant’s previous Plan before 15 May 2021.

   [8] Under subsection 100(2) of the National Disability Insurance Scheme Act 2013 (Cth), a person who is directly affected by a reviewable decision, may request the Respondent to review the reviewable decision. Any request must made within three months after receiving notice of the decision.

   [9] See the interaction notes dated 18 May 2021 at T19 of the T-documents confirming that the National Disability Insurance Agency had received a request from the Applicant to conduct an internal review of the delegate’s decision.

   [10] See page 9 of the Respondent’s Internal Review Decision dated 28 July 2021 at T1A of the T-documents.

   [11] A participant for whom a plan is in effect or is being prepared may, under section 43 of the National Disability Insurance Scheme Act 2013 (Cth), make a request to the Chief Executive Officer of the National Disability Insurance Agency that he or she manage the funding for supports under the plan wholly or to the extent specified in the request.

   [12] See pages 221-222 of T27 of the T-documents.

   [13] The statement of participant supports approved in the Applicant’s Plan on 15 May 2020 specified that the management of the funding in the Applicant’s Plan for improved health and wellbeing, consumables and social community and civic participation was to be self-managed. A copy of the Applicant’s Plan approved by the Respondent on 15 May 2020 for a 12-month period starting from 15 May 2020 and ending before 15 May 2021, is located at pages 221-222 of the T27 of the T-documents.

4. The Respondent was satisfied that three of the 16 supports sought by the Applicant, were on the evidence, reasonable and necessary within the meaning of section 34 of the NDIS Act and Part 5 of the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (the Support Rules), and accordingly, decided to vary the decision made by the delegate on 5 May 2021, to include these three supports in the Applicant’s Plan. The Respondent also decided to approve the Applicant’s request to change the management of the funding for supports under his Plan. This is because they were satisfied that the requirements of sections 43 and 44 of the NDIS Act and Part 3 of the National Disability Insurance Scheme (Plan Management) Rules 2013 had been met[14].

   [14] See page 11 of the Respondent’s Internal Review Decision dated 28 July 2021 at T1A of the T-documents.

5. The three additional reasonable and necessary supports the Respondent was satisfied met the reasonable and necessary criterion test included, firstly, funding to the Applicant’s Core Supports Budget in the amount of $850.00 for Assistive Technology (AT) as a Capacity Building Support for consumable spending where low-cost items can be purchased. Secondly, funding to the Applicant’s Capacity Building Supports Budget in the amount of $581.97 for three hours of podiatry for a Podiatry Assessment and a Podiatry Care Plan. And thirdly, funding to the Applicant’s Capacity Building Supports Budget in the amount of $1,939.90. This amount can be used for an Occupational Therapist to conduct an Active Daily Living Assessment of the Applicant to establish his specific disability support needs[15].

   [15] See page 4 of the Respondent’s Internal Review Decision dated 28 July 2021 at T1A of the T-documents.

   THE APPLICANT’S PLAN

6. As the Respondent decided on 28 July 2021 to vary the delegate’s decision to include the three additional reasonable and necessary supports, a new SOPS in the Applicant’s Plan was approved specifying each of the matters that must be included in a participant’s plan as set out in subsection 33(2) of the NDIS Act. The Applicant’s Plan commenced on 28 July 2021 for a 12-month period and was to be reviewed before the reassessment date of 28 July 2022 as required under Division 4, Part 3, Chapter 3 to the NDIS Act[16].

   [16] For a copy of the statement of participant supports the Respondent approved in the Applicant’s Plan on 28 July 2021 under subsection 33(2) of the National Disability Insurance Scheme Act 2013 (Cth), see pages 247 to 259 of T29 of the T-documents.

7. The Applicant’s Plan includes funding to the Applicant’s Core Supports Budget to cover reasonable and necessary supports to help the Applicant with everyday activities, his current disability related needs and to help the Applicant work towards achieving his goals. The total amount of funding allocated to the Applicant’s Core Supports Budget is $23,063.24. The Applicant’s Core Supports Budget includes funding of $850.00 for the purchase of basic (Level 1) and standard (Level 2) AT to support the Applicant’s functional capacity and participation. The Applicant’s Core Supports Budget specifies these AT items are to be disability related and that the Applicant can purchase them off the shelf. These items may include non-slip bathmats, bath rails and a hand shower diverter. The Applicant’s Core Supports Budget includes funding for social and civic community participation to assist him to engage in community and social or recreational activities within the community. The Applicant’s Core Supports Budget specifies that these supports are to be provided to the Applicant in a centre or in open communities[17]. 

   [17] See page 256 of T29 of the T-documents.

8. The Applicant’s Plan includes funding to the Applicant’s Capacity Building Supports Budget to cover reasonable and necessary supports to help the Applicant build his independence and to reduce his need for receiving the same level of support into the future. The total amount of funding allocated to the Applicant’s Capacity Building Supports Budget is $10,087.48. The Applicant’s Capacity Building Supports Budget includes funding for improved daily living (CB Daily Activity). This includes nine hours of funding so that the Applicant can access a Physiotherapist to create a program and strategies to assist him to maintain his over-all mobility. The Applicant’s Capacity Building Supports Budget includes funding for 40 hours of Occupational Therapy Support. This support has been allocated to assist the Applicant living independently in all environments whilst performing daily tasks and to provide an Active Daily Living Assessment to determine the Applicant’s disability specific support needs. The Applicant’s Capacity Building Supports Budget also includes three hours for a Podiatrist to provide a Podiatry Assessment and a Podiatry Care Plan[18].

   [18] See page 257 of T29 of the T-documents.

9. The Applicant’s Plan also includes funding to the Applicant’s Capital Supports Budget to cover reasonable and necessary supports for any higher-cost pieces of AT, equipment and home or vehicle modifications and Specialist Disability Accommodation. The sum of $4,168.00 has been allocated to the Applicant’s Capital Supports Budget in order for him to be able to access two pairs of custom-made orthoses. The Applicant’s Plan states that these can cost $3,928.00[19].

   [19] See page 258 of T29 of the T-documents.

10. Furthermore, the Applicant’s Plan includes a statement that specifies seven goals that the Applicant wants to achieve in the short-term and in the medium to long-term. In the short-term, the Applicant would like to make improvements to his muscle tone, fitness, pain management, strength, and core to increase his independence within daily task activities, and to live safely in his home and to be able to do so as independently as possible[20]. In the medium to long-term, the Applicant would like to continue living as independently as possible in his own home. He would like to increase his social and community participation activities to expose himself to social interactions to create a new circle of friends and networks outside of his home environment. The Applicant would like to go on a holiday to assist in sustaining informal support. He would like to improve his communication and social skills to decrease frustration and distress. Finally, the Applicant would also like to be able to expand and improve his business, and to be able to improve his work and life balance and to be able to spend more time managing his disability[21].

    [20] See page 253 of T29 of the T-documents.

    [21] See pages 253 to 254 of T29 of the T-documents.

11. The Applicant was given further notice on 28 July 2021 of the Respondent’s decision to approve a SOPS in the Applicant’s Plan under subsection 33(2) of the NDIS Act for a 12-month period commencing on 28 July 2021 and ending before 28 July 2022, the date specified by the Respondent in the Applicant’s Plan as the date by which the Respondent was required to conduct a reassessment of the Applicant’s Plan[22]. The Applicant subsequently lodged an application with the Tribunal on 25 August 2021 in which he sought that the Tribunal conduct a review of the Respondent’s decision dated 28 July 2021. The decision to approve a SOPS in the Applicant’s Plan on 28 July 2021, is for the purpose of this proceeding, the decision that the Tribunal has reviewed.

    [22] See section 48 of the National Disability Insurance Scheme Act 2013 (Cth).

    THE HEARING OF THE APPLICATION

12. A video hearing of the application was held over the course of six days on 19, 20, 30 September 2022 and on 4, 5 and 25 October 2022.

13. The Applicant was assisted at the hearing on a few occasions by Karen Burgess (Ms Burgess), a Social Advocate from Melbourne. However, apart from these few occasions the Applicant, for the most part, appeared before the Tribunal at the hearing self-represented. The Tribunal received oral evidence from the Applicant via video on 19 September 2022.

14. The Applicant called two expert witnesses to give oral evidence to the Tribunal at the hearing in support of his case. His two expert witnesses included Professor Garth A Nicholson (Prof Nicholson), Neurologist and Professor of Neurogenetics and Melissa Wright (Ms Wright), Occupational Therapist. The Tribunal received oral evidence from Prof Nicholson via video on 20 September 2022 and from Ms Wright on 30 September 2022 and again on 4 October 2022, also via video.

1. The Respondent was represented at the hearing by Melissa Fisher of Counsel (Ms Fisher) instructed by Melissa Scriva (Ms Scriva), a Senior Associate with Sparke Helmore Lawyers.

2. The Respondent also called two expert witnesses to give evidence to the Tribunal at the hearing in support of their case. Their two expert witnesses included Deborah Hammond (Ms Hammond), Occupational Therapist and Peter Nasr (Mr Nasr), Licensed Builder. The Tribunal received oral evidence from Ms Hammond on 5 and 25 October 2022 via video and from Mr Nasr on 25 October 2022, also via video.

3. Due to time constraints, it was not possible for the Applicant and Ms Fisher to make their final addresses to the Tribunal on the final day of the hearing. Therefore, in the circumstances, the parties made their closing addresses to the Tribunal by way of written submissions.

4. The Applicant provided his closing written submissions to the Tribunal and to the Respondent via email on 30 January 2023. The Respondent provided their closing written submissions in reply to the Tribunal and to the Applicant via email on 1 March 2023.

   THE APPLICANT’S CASE

5. In his opening address to the Tribunal on 19 September 2022, the Applicant confirmed that for the purpose of his application, he was seeking the approval of nine supports (mentioned below) he argued are reasonable and necessary and thus should be approved and funded under the NDIS. The Applicant submitted to the Tribunal that the nine supports he requests are reasonable and necessary and thus should be included in his Plan and funded under the NDIS because:

   (a)CMTD is a degenerative disease that will continue to progress.

   (b)that in recent years the Applicant’s CMTD has significantly progressed.

   (c)the progression of the Applicant’s CMTD has significantly affected his functional capacity, including to his hands, to safely and independently, undertake daily activities in and around his home and out in the community.

   (d)the progression of the Applicant’s CMTD has significantly affected issues with his balance and mobility leading to falls in and around his home.

   (e)the progression of the Applicant’s CMTD has significantly weakened the strength in his muscles and limbs.

   (f)the Applicant experiences severe and debilitating pain the Applicant says is attributable to his CMTD.

   (g)the house the Applicant and his partner purchased together in July 2019 is not currently suitable for his current disability support needs and will not be suitable to meet his anticipated future disability support needs given that his CMTD is degenerative and will continue to progress.

   (h)the Applicant is unable to access all areas inside and outside of his home safely and independently.

   (i)The Applicant’s only informal support to assist him in and around his home with daily activities and out in the community is his partner, which the Applicant says is unfair on her.

   (j)the supports will allow the Applicant to live safely and independently in his home for the long-term.

   (k)the supports will also help the Applicant to achieve the goals that are specified in his Plan.

   The supports sought by the Applicant

6. The first three supports sought by the Applicant relate to his home modification requests. Supports four and five relate to the Applicant’s AT requests. Supports six and seven relate to the Applicant’s request to include additional funding for physiotherapy support and to receive funding for exercise physiology support in his Capacity Building Supports Budget. Supports eight and nine relate to the Applicant’s request for an additional increase to his Core Supports Budget for 13 hours per week of 1:1 support for in-home assistance with daily activities and four hours of 1:1 support to help the Applicant to access the community for social participation within the community.

   Support 1: Three external ramps or pathways to three outside areas of the Applicant’s home

7. The first support sought by the Applicant relates to his home modification request to install three external ramps or pathways with handrails to three outside areas to the Applicant’s home. Firstly, the Applicant seeks approval for the installation of a ramp or pathway with handrails to the front outside area of his home commencing from the boundary of the Applicant’s property to the front of his house. Secondly, the Applicant seeks approval for the installation of a ramp or pathway also with handrails in the Applicant’s backyard commencing from the back gate to the back boundary of the Applicant’s property[23]. Thirdly, the Applicant seeks approval for the installation of a ramp or pathway also with handrails at the back of the Applicant’s property commencing from the back fence to the back boundary that leads to a creek.

   [23] For completeness, the Tribunal notes that the Applicant had initially sought approval to install a ramp or a pathway with handrails in his backyard beside the swimming pool downhill to the clothesline. However, on the first day of the hearing, the Tribunal was informed that sometime between 30 May 2022 and 27 July 2022, the Applicant undertook landscaping work to his backyard beside the swimming pool downhill to the clothesline and that this request was no longer an issue for the Tribunal to determine. The Tribunal was also informed that the Applicant sought to be reimbursed for the costs, he had incurred to landscape his backyard. However, later in the hearing, whilst giving oral evidence under cross-examination, the Applicant withdrew his request for reimbursement.

   Ramp or pathway to the front of the Applicant’s property

8. The Applicant seeks approval for the installation of a ramp or pathway with handrails to the front outside area of his house commencing from the boundary of the Applicant’s property to the front of his home. This request is made based on the recommendation of Ms Wright in the NDIS Complex Home Modification Assessment Template Form she completed on 16 August 2021[24]. The recommendation is also particularised by Ms Wright in the Occupational Therapy Home Modification Specification Report she prepared either on 16 or 23 August 2021[25] where she stated ‘please supply and install 1200mm wide concrete path to extend from road to front access pathway, approximately 15 metres’. Ms Wright also recommended that handrails be installed to the pathway. Further, Ms Wright stated ‘please note this is NOT a ramp but an option to reduce the current uneven pathway from the road to the front of the house’[26]. The same recommendation is made in the NDIS Complex Home Modification Assessment Template Form Elmer Sagenes (Mr Sagenes), Occupational Therapist completed on 22 February 2022[27]. Mr Sagenes conducted a functional capacity of the Applicant in his home on 15 February 2022.

   [24] See page 89 of T1G of the T-documents.

   [25] See page 48 of T1D of the T-documents.

   [26] Ibid.

   [27] See pages 9-10 of A9 of the Applicant’s Tender Bundle.

9. The Applicant is seeking approval for the installation of a ramp or pathway to the front outside of his home because there is no current safe accessible entry to the front of the Applicant’s property. The only way the Applicant can access the front of his home is via a steep driveway. Ms Wright opined that the Applicant requires safe access to the front of his property[28]. Safety is also cited by the Applicant as the primary reason why he is seeking this support to the front of his property. It also the reasons why the Applicant is seeking approval to install the other two ramps or pathways to the two back outside areas that are identified and mentioned above in paragraph [21]. The Applicant submitted to the Tribunal that presently he is unable to safely access all areas of his home. It was submitted by the Applicant that the installation of the three external ramps or pathways will enable him to access his yard safely and independently[29]. It was submitted by the Applicant that the installation of these ramps or pathways will also allow the Applicant safe access to all areas of his home, thus in turn allowing him to move around his home safely, especially during times when the Applicant is home alone. Furthermore, it was submitted by the Applicant that the installation of these ramps or pathways will ensure that any additional support from other persons that the Applicant may have otherwise needed funded under the NDIS, would not be required[30].

   [28] See page 89 of T1G of the T-documents.

   [29] See page 103 of the second page under the heading Pathways in the Applicant’s undated Participant Impact Statement at T1I of the T-documents and also on the second page under the heading Pathways of the Applicant’s undated Participant Impact Statement at A18 of the Applicant’s Tender Bundle.

   [30] See the Applicant’s Participant Impact Statement at A13 of the Applicant’s Tender Bundle.

10. In support of his request to install a pathway to the front outside area of the Applicant’s home, the Applicant relies on the Occupational Therapy Home Modification Specification Report Ms Wright prepared either on 16 or 23 August 2021[31], the NDIS Complex Home Modification Assessment Template Form Ms Wright completed on 18 August 2021[32] and the NDIS Complex Home Modification Assessment Template Form Mr Sagenes completed on 22 February 2022[33].

    [31] See T1D of the T-documents.

    [32] See T1G of the T-documents.

    [33] See A9 of the Applicant’s Tender Bundle.

11. The Applicant has also obtained three quotes in relation to his request to install a pathway to the front of his home. The first is from Henry Care, dated 16 October 2020[34] for the sum of $10,395.50. The second is from Priority Care and Support, dated 27 May 2021[35] for the sum of $13,000.00. The third is also from Priority Care and Support, dated 23 August 2021[36] for the sum of $18,500.00.

    [34] See T5 of the T-documents.

    [35] See T24 of the T-documents.

    [36] See T1H of the T-documents.

    Ramp or pathway to backyard from the back gate to the boundary of the Applicant’s property

12. The Applicant seeks approval for the installation of a ramp or pathway also with handrails to his backyard commencing from the back gate to the back boundary of the Applicant’s property.

13. The Applicant is seeking approval for the installation of a ramp or pathway to his backyard commencing from the back gate to the back boundary of his property so that the Applicant can access his backyard and so that the Applicant is able to play with and attend to his dogs as the area has a number of uneven sections.

14. In support of his request to install a ramp or pathway to his backyard commencing from the back gate to the back boundary of his property, the Applicant relies on the NDIS Complex Home Modification Assessment Template Form Mr Sagenes completed on 22 February 2022[37]

    [37] See A9 of the Applicant’s Tender Bundle.

15. The Applicant also obtained two quotes in relation to his request to install a ramp or a pathway in his backyard commencing from the back gate to the back boundary of his property. The first is from Henry Care, dated 16 October 2020[38] for the sum of $16,291.50. The second is from Priority Care and Support, dated 27 May 2021[39] for the sum of $14,500.00.

    [38] See T8 of the T-documents.

    [39] See T24 of the T-documents.

    Ramp or pathway from back fence to the boundary of the creek

16. The Applicant seeks approval for the installation of a ramp with handrails to the back of the Applicant’s property commencing from the back fence to the back boundary of the creek.

17. The Applicant is seeking approval for the installation of a ramp or pathway with handrails to the back of the Applicant’s property commencing from the back fence to the back boundary of the creek so that he can safely access the creek for leisurely activities.

18. In support of his request to install a ramp or a pathway at the back of his property commencing from the back fence to the back boundary of the creek, the Applicant relies on the NDIS Complex Home Modification Assessment Template Form that Mr Sagenes completed on 22 February 2022[40].

    [40] See A9 of the Applicant’s Tender Bundle.

    Support 2: Tiling to the area around the Applicant’s swimming pool

19. The second support sought by the Applicant also relates to his home modification request. The Applicant seeks approval to tile the area around his swimming pool[41].

    [41] For completeness, the Tribunal notes that the Applicant also sought approval to relevel the ground and lay turf in the backyard adjacent to his swimming pool. However, the Tribunal understands that as a result of the landscaping work that was undertaken by the Applicant to his backyard this work is no longer required and thus the request is no longer an issue for the Tribunal to determine.

20. The Applicant is seeking approval to tile the area around his swimming pool because the existing cemented surface is cracked and uneven. The Applicant claimed that this surface is a trip hazard. The Applicant stated that due to the existing surface around the pool, he is unable to access the pool area to use it for swimming. The Applicant stated that in summer, the cemented surface heats up and can burn the soles of his feet[42]. It was submitted by the Applicant that in his opinion these two issues can be resolved by laying travertine tiles, or as was suggested by the Applicant at the hearing, porcelain tiles, around the pool area.

    [42] See page 103 of the Applicant’s Participant Impact Statement at T1I of the T-documents.

21. In support of his request to tile the outside pool area with travertine tiles, the Applicant relies on the NDIS Complex Home Modification Assessment Template Form that Mr Sagenes completed on 22 February 2022[43]. The Tribunal notes that the Applicant has not provided any expert evidence regarding his proposal to tile the outside area of the pool with porcelain tiles.

    [43] See A9 of the Applicant’s Tender Bundle.

22. The Applicant also obtained two quotes in relation to his request for tiling the area of his pool with travertine tiles. The first is from Seacoast Landscapes, dated 19 February 2021[44] for the sum of $14,520.00. The second is from MJD Landscapes, dated 11 March 2021[45] for the sum of $20,589.00. The Tribunal notes that the Applicant has not obtained a quote that sets out the costs to tile the pool area with porcelain tiles.

    [44] See T14 of the T-documents.

    [45] See T17 of the T-documents.

    Support 3: Modifications to the Applicant’s main bathroom and toilet

23. The third support sought by the Applicant also relates to his home modification request. The Applicant seeks approval to modify the existing main bathroom and toilet in his house. This request proposes knocking down an existing wall between the main bathroom and toilet to create an accessible bathroom and toilet.

24. The Applicant is seeking the approval to modify his main bathroom and toilet so that will be able to access and use his main bathroom and toilet safely and independently when undertaking self-care tasks.

25. In support of his request to modify his main bathroom and toilet, the Applicant relies on the Home Modification Report prepared by Ms Wright on 16 August 2021[46], the NDIS Complex Home Modification Assessment Template Form Ms Wright completed on 18 August 2021[47] and the NDIS Complex Home Modification Assessment Template Form Mr Sagenes completed on 22 February 2022[48].

    [46] See T1D of the T-documents.

    [47] See T1G of the T-documents.

    [48] See A9 of the Applicant’s Tender Bundle.

26. The Applicant has obtained three quotes in relation to his request to modify the main bathroom and toilet. The first is a quote from Henry Care, dated 7 December 2020[49] for the sum of $74,800.00. The second is a quote from Priority Care and Support, dated 27 May 2021[50] for the sum of $80,750.00. The third is a quote also from Priority Care and Support, dated 23 August 2021[51] for the sum of $80,500.00.

    [49] See T10 of the T-documents.

    [50] See T24 of the T-documents.

    [51] See T1H of the T-documents.

    Support 4: Thermomix

27. The fourth support sought by the Applicant relates to his AT request. The Applicant seeks a Thermomix.

28. The Applicant is seeking the approval of a Thermomix because the Applicant wants to decrease the use of paid support workers and increase his ability to cook and prepare food independently[52]. The Tribunal notes that the Applicant reported to Ms Wright on 2 August 2021 during a functional capacity assessment of the Applicant that he was unable to prepare recipes due to increased fatigue and the time taken to attempt to prepare or cook meals[53].

    [52] See page 19 of T1B of the T-documents

    [53] See page 31 of T1C of the T-documents.

29. In support of his request for a Thermomix, the Applicant relies on the IOH Functional Assessment Report Ms Wright prepared on 5 August 2021[54], the Thermomix Functional Assessment Report Ms Wright prepared on 10 August 2021[55], the Chris Sewell Thermomix Supplementary Report Ms Wright prepared on 17 December 2020[56] and the Thermomix Support Report Ms Wright prepared on 19 April 2021[57].

    [54] See T1B of the T-documents.

    [55] See T1C of the T-documents.

    [56] See T12 of the T-documents.

    [57] See T18 of the T-documents.

30. The Applicant also obtained a quote in relation to his request for a Thermomix from Thermomix, dated 8 December 2020 for a Thermomix TM6 Kitchen Appliance for the sum of $2,269.00[58].

    [58] See T11 of the T-documents.

    Support 5: Complete home automation system

31. The fifth support sought by the Applicant also relates to his AT request. The Applicant is seeking the approval of a complete home automation system. It is proposed that the system encompass a variety of features such as lighting, video intercom, blind operation, air conditioning and that would allow the control of all home lights, blinds, air conditioners, TV, and doors and locks through the use of the Applicant’s phone or iPad without the Applicant having to leave his bed.

32. The Applicant is seeking the approval of a complete home automation system is because of reduced functionality to his hands and experiences of debilitating and severe pain the Applicant says is attributable to his diagnosis of CMTD. It was submitted by the Applicant that it would be beneficial to his everyday life to have a complete home automation system as he has difficulty with fine motor coordination tasks, such as using keys to open doors and blinds. It was submitted by the Applicant that the complete home automation system would be essential to him during periods when he experiences debilitating pain. He stated that when he experiences periods of debilitating pain, he stays in bed where he is unable to move. It was submitted by the Applicant that the complete home automation system will allow him to let support workers into his home during periods when he is bedridden due to pain, and moreover, enable him to control lights and the temperature. It was submitted further by the Applicant that if he needed to get up in the night, the complete home automation system could turn the necessary lights on so that he could see and not harm himself[59].

    [59] See page 145 of T15 of the T-documents.

33. In support of his request for the approval of a complete home automation system, the Applicant relies on the NDIS Complex Home Modification Assessment Template Form Ms Wright completed on 18 August 2021[60] and the Chris Sewell Home System Support Report Ms Wright prepared on 25 February 2021[61] and the Plan Review Supplementary Support Report Ms Wright prepared on 25 May 2021[62].

    [60] See T1F of the T-documents.

    [61] See T15 of the T-documents.

    [62] See T23 of the T-documents.

34. The Applicant also obtained two quotes in relation to his request for the installation of a complete home automation system. The first is from Control4 Home Automation, dated 10 March 2021[63] for the sum of $92,168.00. This quote also included costings for the installation of new lighting (LED lights) in every room to the Applicant’s house. The second is from Controlhouse, dated 28 May 2021[64] for the sum of $86,344.50. The Tribunal notes that the second quote obtained by the Applicant did not include costings for the installation of LED lights throughout the Applicant’s house.

    [63] See T16 of the T-documents.

    [64] See T25 of the T-documents.

    Support 6: One hour per week of physiotherapy support with a physiotherapist

1. The sixth support sought by the Applicant relates to his request for Capacity Building Supports. The Applicant seeks additional funding to his Capacity Building Supports Budget for one hour per week of physiotherapy support with a physiotherapist.

2. The Applicant is seeking additional funding to his Capacity Building Supports Budget for one hour per week of physiotherapy support with a physiotherapist is because he requires manual manipulation to his muscles twice weekly for 30-minutes a session. The Applicant submitted that this cannot be achieved by a home program routine nor achieved by himself. The Applicant also stated that another reason for him seeking this support is because it is physiologically impossible due to weakness in his hands[65].

   [65] See the Applicant’s Participant Impact Statement at A13 of the Applicant’s Tender Bundle.

3. In support of his request for physiotherapy, the Applicant relies on the IOH Functional Assessment Report Ms Wright prepared on 5 August 2021[66], the three Physiotherapy Reports Declan Morrissy (Mr Morrissy), Musculoskeletal Physiotherapist prepared on 18 May 2021[67], 16 August 2021[68], and 5 November 2021[69].

   [66] See T1B of the T-documents.

   [67] See T20 of the T-documents.

   [68] See T1E of the T-documents.

   [69] See A13 of the Applicant’s Tender Bundle.

   Support 7: Two hours per week of exercise physiology support with an exercise physiologist

4. The seventh support sought by the Applicant also relates to his request for Capacity Building Supports. The Applicant seeks funding to his Capacity Building Supports Budget for two hours per week of exercise physiology support with an exercise physiologist.

5. The Applicant is seeking funding to his Capacity Building Supports Budget is because he says he requires an exercise physiologist to help him exercise safely. This will enable the Applicant to be able to maintain, and hopefully, improve his health, thus preventing the Applicant needing additional future supports[70].

   [70] Ibid.

6. In support of his request for exercise physiology, the Applicant relies on the IOH Functional Assessment Report Ms Wright prepared on 5 August 2021[71], and the Exercise Physiologist Report Laura Olliver (Ms Olliver), Accredited Exercise Physiologist prepared on 11 November 2021 and an additional undated report[72].

   [71] See T1B of the T-documents.

   [72] See A11 of the Applicant’s Tender Bundle.

7. For completeness, the Tribunal notes that the Applicant also requested funding to his Capacity Building Supports Budget for 13 hours per year of podiatry sessions with a Podiatrist. However, at the commencement of the first day of the hearing, the parties informed the Tribunal that this request was no longer in dispute and thus no longer an issue for the Tribunal to determine on review. The Tribunal was also informed by the parties that the Applicant had accepted the Respondent’s offer to fund a total of nine 30-minute podiatry visits per year (4.5 hours per year), plus annual biomedical assessment ($120.00) and annual podiatrist report ($160.00).

   Support 8: 13 hours per week of 1:1 support for in-home assistance with daily living activities

8. The eighth support sought by the Applicant relates to his request for Core Supports. The Applicant seeks additional funding to his Core Supports Budget for 13 hours per week of 1:1 support for in-home assistance with daily living activities.

9. The reason the Applicant is seeking additional funding to his Core Supports Budget for 13 hours per week of 1:1 support for in-home assistance with daily living is understood to be on the following basis:

   (a)The Household Income and Labour Dynamics in Australia Survey Report prepared by the Melbourne Institute which the Applicant claims states that a de facto couple without children spend 29 hours per week on housework;

   (b)The Applicant has halved 29 hours to arrive at 14.5 hours per week as his share of 29 hours; and

   (c)The Applicant has elected to receive only 13 hours per week of 1:1 support for in-home assistance with daily living, cutting out one and a half hours that he will save if the Respondent funds a Thermomix[73].

   [73] See the Applicant’s Participant Impact Statement at A18 of the Applicant’s Tender Bundle.

10. The Tribunal notes that the Survey Report prepared by the Melbourne Institute’s Household Income and Labour Dynamics in Australia was not provided to the Tribunal. The Applicant also relies on the Summary Report Janine P (Janine P), Senior Occupational Therapist prepared on 23 November 2020[74] following her functional capacity assessment of the Applicant in his home on the same day.

    [74] See T9 of the T-documents.

    Support 9: Four hours per week of 1:1 support for the Applicant to access the community for social participation

11. The ninth support sought by the Applicant also relates to his request for Core Supports. The Applicant seeks additional funding to his Core Supports Budget for four hours per week of 1:1 support to access the community for social participation.

12. The Applicant is seeking additional funding to his Core Supports Budget for four hours per week of 1:1 support to access the community because he has finished full time employment[75] and is now working for himself. It was submitted by the Applicant that due to this change in circumstance he is more isolated than ever. It was further submitted by the Applicant that additional funding for four hours per week of 1:1 support will enable him to participate in community and social activities[76].

    [75] The Tribunal understands that the Applicant ceased fulltime employment in November of 2021.

    [76] See the Applicant’s Participant Impact Statement at A13 of the Applicant’s Tender Bundle.

    Evidence relied upon by the Applicant

13. The Applicant relied upon the following evidence in support of his request for the approval of the supports identified and discussed above:

    (a)The Occupational Therapy Report of Ms Wright dated 23 August 2022[77];

    [77] See A2 of the Applicant’s Tender Bundle.

    (b)The Occupational Therapy Report of Ms Wright dated 16 November 2021[78];

    [78] See A13 of the Applicant’s Tender Bundle.

    (c)The Occupational Therapy Home Modification Specification Report of Ms Wright dated 16 and 23 August 2021[79];

    [79] See T1D of the T-documents and A17 of the Applicant’s Tender Bundle.

    (d)The Thermomix Functional Assessment Report of Ms Wright dated 10 August 2021[80];

    [80] See T1C of the T-documents and A13 of the Applicant’s Tender Bundle.

    (e)The IOH Functional Assessment Report of Ms Wright dated 5 August 2021[81];

    [81] See T1B of the T-documents and A16 of the Applicant’s Tender Bundle.

    (f)The Plan Review Supplementary Support Report of Ms Wright dated 25 May 2021[82];

    [82] See T23 of the T-documents.

    (g)The Thermomix Letter of Support Report of Ms Wright dated 19 April 2021[83];

    [83] See T18 of the T-documents.

    (h)The Chris Sewell Home System Support Report of Ms Wright dated 25 February 2021[84];

    [84] See T15 of the T-documents.

    (i)The Chris Sewell Thermomix Supplementary Report of Ms Wright dated 17 December 2020[85];

    [85] See T12 of the T-documents.

    (j)The National Disability Insurance Scheme Complex Home Modification Assessment Template Form completed by Ms Wright on 18 August 2021[86];

    [86] See T1G of the T-documents and A16 of the Applicant’s Tender Bundle.

    (k)The National Disability Insurance Scheme Complex Home Modification Assessment Template Form completed by Ms Wright on 24 May 2021[87];

    [87] See T22 of the T-documents.

    (l)The National Disability Insurance Scheme Complex Home Modification Assessment Template Form completed by Mr Sagenes on 22 February 2022[88];

    [88] See A9 of the Applicant’s Tender Bundle.

    (m)The Physiotherapy Report of Mr Morrissy dated 16 August 2021[89];

    [89] See T1E of the T-documents and A20 of the Applicant’s Tender Bundle.

    (n)The Physiotherapy Report of Mr Morrissy dated 18 May 2021[90];

    [90] See T20 of the T-documents.

    (o)The Exercise Physiology Report of Laura Olliver (Ms Olliver), Accredited Exercise Physiologist, (undated)[91];

    [91] See A11 of the Applicant’s Tender Bundle.

    (p)The Exercise Physiology Report of Ms Olliver dated 11 November 2021[92];

    [92] See A13 of the Applicant’s Tender Bundle.

    (q)The Occupational Assessment Summary Report of Janine P dated 23 November 2020[93];

    [93] See T9 of the T-documents and A12 of the Applicant’s Tender Bundle.

    (r)The letter of Prof Nicholson dated 15 March 2022[94];

    [94] See A6 of the Applicant’s Tender Bundle.

    (s)The Applicant’s first Participant Impact Statement (PIS) (undated) lodged with the Tribunal on 25 August 2021[95];

    [95] See T1I of the T-documents also pages 15 and 80 of the Respondent’s Tender Bundle.

    (t)The Applicant’s second PIS (undated) lodged with the Tribunal on 25 November 2021[96];

    [96] See A13 of the Applicant’s Tender Bundle. 

    (u)The Applicant’s third PIS (undated) lodged with the Tribunal on 13 January 2022[97]; and

    [97] See A10 of the Applicant’s Tender Bundle.

    (v)The Applicant’s fourth PIS (undated) lodged with the Tribunal on 5 September 2022[98]; and

    [98] See A5 of the Applicant’s Tender Bundle.

    (w)The Applicant’s statutory declaration made on 28 June 2022[99].

    [99] See A7 of the Applicant’s Tender Bundle.

    THE RESPONDENT’S CASE

14. The Respondent accepts on the evidence that the Applicant has a diagnosis of CMTD and that he exhibits symptoms of the disability. However, it was submitted for the Respondent that they dispute the extent of the impact of the disability on the Applicant’s functional capacity as the Applicant asserts, and, therefore, the disability related supports he requires. It was submitted for the Respondent that documents produced to the Tribunal under summons by Prof Nicholson, Dr Richard D Lawson (Dr Lawson) and the Practice Manager of the Dapto Medical and Family Practice Pty Ltd show details of the Applicant’s diagnosis of CMTD, the treatment he has received for this disability and the functional capacity in relation to his hands. 

15. It was submitted for the Respondent that two issues arise on the Applicant’s case insofar as it relates to his request for home modifications. The first issue is the circumstances in which the Applicant purchased his home. It was submitted for the Respondent that this is not the usual case where a participant had an existing home at the time of becoming a participant of the NDIS that required home modifications. Rather, it is a case where the Applicant became a participant of the NDIS in May 2018 and some 14 months later, he purchased his home.

16. It was submitted for the Respondent that contrary to the National Disability Insurance Scheme –– Including Specific Types of Supports in Plans Operational Guideline – Home Modifications (Home Modifications Guideline)[100], the Applicant had not involved the Agency in his decision to purchase a property and nor did he seek the views of an Occupational Therapist before purchasing this property. Thus in order to determine if the property was suitable for the Applicant’s current and anticipated future disability support needs is a relevant consideration for the Tribunal. It was submitted for the Respondent that these were matters known to the Applicant about the potential future progression of his disability which is not reflected in this purchase. It was therefore submitted for the Respondent that it should have been evident to the Applicant that the property at that time was not appropriate nor was it suitable for his present and anticipated future disability support needs.

    [100] See T33 of the T-documents.

17. It was submitted for the Respondent that the fact that the Applicant did not involve the Agency in the decision to purchase the property in July 2019 or otherwise engage an Occupational Therapist to advise him on its suitability, is a matter that the Tribunal can take into consideration in determining whether the home modification supports sought by the Applicant 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, as required in subsection 34(1)(c) of the NDIS Act.

18. The second issue raised by the Respondent on the Applicant’s home modification request, is whether the Applicant’s house can feasibly be made wheelchair accessible. It was submitted for the Respondent, based on the expert evidence of Ms Hammond and Mr Nasr, that it did not represent value for money, in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support to undertake major modifications to the Applicant’s main bathroom to make it wheelchair accessible or to install a complete home automation system. Noting the submissions made by the Applicant that he and Ms Wright contest that proposition, it was submitted for the Respondent that it now falls to the Tribunal the determination based on the evidence whether or not the Applicant’s home can feasibly be made wheelchair accessible.

    Respondent’s position on the specific supports sought by the Applicant

19. The Respondent’s case in relation to the Applicant’s request for the installation of a ramp or pathway with handrails to the front outside area of the Applicant’s house commencing from the boundary of his property to the front of his house is that there appears to be agreement between the parties that some sort of modification is required to this area to allow pedestrian access to the front entrance of the Applicant’s home. The Respondent accepts that the installation of a front pathway with steps at a cost of $16,900.00 as recommended by Ms Hammond and Mr Nasr is a reasonable and necessary support for the purpose of section 34 of the NDIS Act.

20. The Respondent’s case in relation to the Applicant’s request for the installation of a ramp or a pathway with handrails to his backyard commencing from the back gate to the back boundary of the Applicant’s property is that there is insufficient evidence before the Tribunal for it to be positively satisfied that this support meets the requirements of subsections 34(1)(c) and (d) of the NDIS Act.

21. The Respondent’s case in relation to the Applicant’s request for the installation of a ramp or pathway with handrails commencing from the back fence to the boundary of the creek is that there is insufficient evidence before the Tribunal for it to be positively satisfied that this support meets the requirements of subsections 34(1)(d) of the NDIS Act. It was submitted for the Respondent that based on the expert evidence of Mr Nasr that this support should not be funded under the NDIS because it is likely to cause harm to the Applicant or pose a risk to others contrary to rule 5.1(a) of the Support Rules.

22. The Respondent’s case in relation to the Applicant’s request to tile either the outside area of his swimming pool with travertine or porcelain tiles is that there is insufficient evidence before the Tribunal for it to be satisfied that the supports requested represents value for money under subsection 34(1)(c) of the NDIS Act nor did the support requested would be effective and beneficial for the Applicant under subsection 34(1)(d) of the NDIS Act. It was submitted for the Respondent that based on the expert evidence of Ms Hammond and Mr Nasr that this support should not be funded under the NDIS because it is likely to cause harm to the Applicant or pose a risk to others contrary to rule 5.1(a) of the Support Rules.

23. Turning to the specific request to modify the Applicant’s main bathroom and toilet, the Respondent’s case is that the support does not satisfy the requirements of subsection 34(1)(c) of the NDIS Act because it does not represent value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support. It was submitted for the Respondent that there are two reasons why the Respondent arrived at this position. The first reason is because the Applicant’s house itself cannot feasibly be made wheelchair accessible. The second reason is that there is a comparable support at a substantially lower cost recommended by Mr Nasr. This consists of a minor modifications to the Applicant’s ensuite bathroom, at a cost of $12,300.00. This is instead of the Applicant’s proposed cost of $80,000 to carry out major modification work to his main bathroom and toilet. This is inconsistent with rule 3.1(a) of the Support Rules.

24. It was also submitted for the Respondent that the bathroom modification request is not currently indicated and thus will not substantially improve the Applicant’s life stage outcomes at the moment. It was therefore submitted that this support does not meet the requirements of subsection 34(1)(d) of the NDIS Act in that the support will not be effective and beneficial for the Applicant, having regard to current good practice. It was submitted for the Respondent that the fact that the support is not clinically indicated at the moment is relevant and importantly, current good practice requires that minor modifications are done in the first instance.

25. It was submitted for the Respondent that there is insufficient evidence before the Tribunal that the support of bathroom modifications will substantially improve the life stage outcomes for, and be of long-term benefit to, the Applicant for the purpose of rule 3.1(b) of the Support Rules.

26. The Respondent’s case in relation to the Applicant’s request for a Thermomix is that the support does not represent value for money as there are comparable supports that would achieve the same outcome at a substantially lower cost as required by rule 3.1(a) of the Support Rules and thus subsection 34(1)(c) of the NDIS Act is not met. It was further submitted for the Respondent that the provision of funding for a Thermomix support does not take into account what is reasonable to expect the Applicant’s partner to provide by way of informal support. Therefore, it was submitted the requirements of subsection 34(1)(e) of the NDIS Act are not met.

27. The Respondent’s case in relation to the Applicant’s request for a complete home automation system is that based on the medical records of the Applicant this support is not clinically indicated at present in relation to the Applicant’s current hand function and also in relation to his reports of pain. It was submitted for the Respondent that the Tribunal should find on the evidence that the support of a complete home automation system does not represent value in money as there are comparable supports that would achieve the same outcome at a substantially lower cost as is required under rule 3.1(a) of the Support Rules. Thus, it was submitted for the Respondent that subsection 34(1)(c) of the NDIS Act is not met.

28. It was submitted further for the Respondent that the support of a complete home automation system should not be funded on the basis of the Applicant’s reports of pain because there is no evidence that the pain relates to the Applicant’s disability of CMTD. Thus it was submitted that this support should not be funded because of rule 5.1(b) of the Support Rules.

29. The Respondent’s case in relation to the Applicant’s request for an additional two 30-minute sessions per week of physiotherapy support is that the Tribunal should find on the evidence that the alternative support of physiotherapy (15 hours per year) as proposed by the Respondent is reasonable and necessary. It was submitted for the Respondent that the treatment for injuries and pain is not the responsibility for the Agency as set out in rule 7.5 of the Support Rules.

30. The Respondent’s case in relation to the Applicant’s request for two hours per week of exercise physiology support is that there is insufficient evidence before the Tribunal for it to be satisfied the support of an exercise physiologist would meet the requirements of subsections 34(1)(c) and (d) of the NDIS Act.

1. The Respondent’s case in relation to the Applicant’s request for 13 hours per week of 1:1 support for in-home assistance with daily activities is that there is insufficient evidence before the Tribunal for it to be satisfied that this support will represent value for money under subsection 34(1)(c) of the NDIS Act and furthermore be effective and beneficial for the Applicant under subsection 34(1)(d) of the NDIS Act.

2. The Respondent’s case in relation to the Applicant’s request for four hours per week of 1:1 support to access the community for social participation is that the Applicant on the evidence can access the community in his work and also socially safely and independently.

   Evidence relied upon by the Respondent

3. The Respondent relies on the following evidence to support their case in reply:

   (a)The Functional Capacity Assessment Report of Ms Hammond dated 28 July 2022[101];

   [101] See R9 of the Respondent’s Tender Bundle.

   (b)The Supplementary Functional Capacity Assessment Report of Ms Hammond dated 19 August 2022[102]; and

   [102] See R4 of the Respondent’s Tender Bundle.

   (c)The Feasibility Assessment Report of Mr Nasr dated 28 July 2022[103].

   [103] See R5 of the Respondent’s Tender Bundle.

   THE APPLICATION TO RE-OPEN THE CASE

4. In his closing written submissions, the Applicant sought to re-open his case in circumstances after the hearing of his application had concluded but before I had delivered my Reasons for Decision. The Applicant sought to re-open his case for three reasons. The first reason was so that the Applicant could adduce and give fresh evidence that was not before the Tribunal at the hearing. The second reason was so that the Applicant could change the case he presented to the Tribunal at the hearing insofar as it related to his request for approval to have an access ramp/pathway installed to the front outside area of his home. The third reason was so that the Applicant could ask the Tribunal to consider an alternative home modification request to the front outside area of his home.

5. In their closing written submissions in reply, it was submitted for the Respondent that, as a matter of procedural fairness, I should not take into consideration the Applicant’s changed case on the basis that the Respondent was not afforded an opportunity to test the Applicant’s changed case, and, in particular, to put that case to the Respondent’s expert witnesses. It was also submitted for the Respondent that I should not have regard to the fresh evidence the Applicant sought to adduce and give as referred to and attached to his closing written submissions on the basis that the Respondent was not afforded an opportunity at the hearing to test this evidence and in particular, to cross-examine the Applicant’s cleaner.

6. I held a Directions Hearing in this matter by telephone on 19 April 2023 so that I could discuss the with the parties the Applicant’s application to re-open his case, the Respondent’s submissions to oppose the Applicant’s application on the basis of procedural fairness, and the principles to be applied by the Tribunal when considering applications by a party to a proceeding to re-open their case in order for them to be able to adduce and give further evidence after the hearing had concluded but before the Tribunal had made a decision.

7. The Applicant appeared at the Directions Hearing self-represented and Ms Scriva appeared for the Respondent, instructed by Sana Minhas, a legal practitioner with the Agency. After discussing the matters referred to above in paragraph [84], the Applicant informed the Tribunal that he did not wish to proceed with his application to re-open his case or rely on the fresh evidence attached to his closing written submissions. The Applicant confirmed the decision he made and communicated to the Tribunal at the Directions Hearing on 19 April 2023 via email on 3 May 2023.

8. The Tribunal has therefore proceeded to determine the application by reference to considering whether the supports sought by the Applicant as summarised above, are, on the evidence, which was before the Tribunal at the hearing, reasonable and necessary for the purpose of sections 33 and 34 of the NDIS Act.

   THE STATUTORY FRAMEWORK

9. The NDIS[104], implemented under the NDIS Act, established the statutory framework for a new national program for the delivery of supports and services funded under the NDIS to eligible people living with disability to help them in their everyday lives supporting their independence and social and economic participation and enabling them to exercise choice and control over the planning and the delivery of their supports.

   [104] National Disability Insurance Scheme is defined in section 9 of the National Disability Insurance Scheme Act 2013 (Cth) to mean the arrangements set out in Chapters 2 and 3.

10. The NDIS Act established the NDIA[105]. The NDIA is the independent Commonwealth Agency responsible for the administration of the NDIS. The functions of the Agency are set out in section 118 of the NDIS Act and their powers are set out in section 119 of the NDIS Act.

    [105] See section 117 of the National Disability Insurance Scheme Act 2013 (Cth).

11. Chapter 1 to the NDIS Act outlines the objects and the general principles that underpin the legislation. The objects of the NDIS Act are set out in section 3 of the NDIS Act and include, but are not limited to, supporting the independence and social and economic participation of people with disability[106], providing reasonable and necessary supports, including early intervention supports, for participants[107], enabling people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports[108], facilitating the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability[109] and promoting the provision of high quality and innovative supports to people with disability[110]. Subsection 3(2) of the NDIS Act identifies three ways in which the objects of the NDIS Act are to be achieved. These include providing the foundation for governments to work together to develop and implement the NDIS[111], adopting an insurance-based approach, informed by actuarial analysis, to the provision and funding of supports for people with disability[112], and establishing a national regulatory framework for persons and entities who provide supports, and services to people with disability, including certain supports and services provided outside of the NDIS[113].

    [106] See subsection 3(1)(c) of the National Disability Insurance Scheme Act 2013 (Cth).

    [107] See subsection 3(1)(d) of the National Disability Insurance Scheme Act 2013 (Cth).

    [108] See subsection 3(1)(e) of the National Disability Insurance Scheme Act 2013 (Cth).

    [109] See subsection 3(1)(f) of the National Disability Insurance Scheme Act 2013 (Cth).

    [110] See subsection 3(1)(g) of the National Disability Insurance Scheme Act 2013 (Cth).

    [111] See subsection 3(2)(a) of the National Disability Insurance Scheme Act 2013 (Cth).

    [112] See subsection 3(2)(b) of the National Disability Insurance Scheme Act 2013 (Cth).

    [113] See subsection 3(2)(c) of the National Disability Insurance Scheme Act 2013 (Cth).

    90.Chapter 3 to the NDIS Act provides the guiding framework for participants and the development of individualised participant plans and how a person becomes a participant of the NDIS. Section 31 of the NDIS Act sets out several principles that should, so far as reasonably practicable, be considered in relation to the preparation, variation, reassessment and replacement of a participant’s plan, and the management of the funding for supports under a participant’s plan.

12. From 8 April 2022, following the passage of legislative amendments to section 32 of the NDIS Act, as introduced by the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022 (Cth), the CEO must, if a person becomes a participant of the NDIS, facilitate the preparation of a participants plan within 21 days of the person becoming a participant[114].

    [114] See section 32 of the National Disability Insurance Scheme Act 2013 (Cth).

13. After a person becomes a participant of the NDIS, they develop a plan with the Agency in two parts. The first part to the development of a participant’s plan includes the preparation of a statement (the statement of goals and aspirations) that is prepared by the participant that specifies their goals, objectives and aspirations, the environmental and personal context of the participant’s living, including the participant’s living arrangements and informal community supports and other community supports and their social and economic participation[115].

    [115] See section 33 of the National Disability Insurance Scheme Act 2013 (Cth).

14. The second part to the development of a participant’s plan includes the preparation of another statement (the statement of participant supports) that must be included in the participant’s plan as required under subsection 33(2) of the NDIS Act. This statement must be prepared with the participant and approved by the CEO, that specifies a number of matters, including the general supports (if any) that will be provided to, or in relation to, the participant, and the reasonable and necessary supports (if any) that will be funded under the NDIS, the date by which, or the circumstances in which, the Agency must reassess the plan under Division 4, and the management of the funding for supports under the plan[116] and the management of other aspects of the plan[117].

    [116] See Division 3 of Part 2 to Chapter 3 to the National Disability Insurance Scheme Act 2013 (Cth).

    [117] See subsection 33(2) of the National Disability Insurance Scheme Act 2013 (Cth).

15. Subsection 33(3) of the NDIS Act provides that the reasonable and necessary supports that will be funded or provided under the NDIS may at the discretion of the CEO be identified in a participant’s plan specifically or generally, whether by reference to a specified purpose or otherwise.

16. Subsection 33(4) of the NDIS Act provides that the CEO must decide whether or not to approve the statement of participant supports either within the period worked out in accordance with the NDIS Rules prescribed for the purposes of this paragraph (which may take account of section 36 (information and reports))[118] or if there are no such Rule(s) – as soon as reasonably practicable, including what is reasonably practicable having regard to section 36 (information and reports)[119].

    [118] See subsection 33(4)(a) of the National Disability Insurance Scheme Act 2013 (Cth).

    [119] See subsection 33(4)(b) of the National Disability Insurance Scheme Act 2013 (Cth).

17. Subsection 33(5) of the NDIS Act sets out several matters that the CEO must have regard to when deciding whether to approve a statement of participant supports. These include the participant’s statement of goals and aspirations as mentioned earlier[120], whether the supports are reasonable and necessary supports as required by section 34 of the NDIS Act[121], whether any relevant assessments have been conducted in relation to the participant[122], whether any methods or criteria are specified in the NDIS Rules for deciding the manner in which, and by whom, the reasonable and necessary supports will be funded or provided[123], the principle that it is desirable for a participant to manage their plan to the extent that they wish to do so[124], and the operation and effectiveness of any previous plans of the participant[125].

    [120] See subsection 33(5)(a) of the National Disability Insurance Scheme Act 2013 (Cth).

    [121] See subsection 33(5)(c) of the National Disability Insurance Scheme Act 2013 (Cth).

    [122] See subsection 33(5)(b) of the National Disability Insurance Scheme Act 2013 (Cth).

    [123] See subsection 33(5)(d) of the National Disability Insurance Scheme Act 2013 (Cth).

    [124] See subsection 33(5)(e) of the National Disability Insurance Scheme Act 2013 (Cth).

    [125] See subsection 33(5)(f) of the National Disability Insurance Scheme Act 2013 (Cth).

18. Subsection 33(6) of the NDIS Act provides to the extent that the funding for supports under a participant’s plan is managed by the Agency, the plan must provide that the supports are to be provided only by a registered NDIS provider.

19. A participant’s plan may include additional matters as prescribed in the NDIS Rules[126],  and a participant’s statement of goals and aspirations must be in writing or recorded by the Agency in writing[127].

    [126] See subsection 33(7) of the National Disability Insurance Scheme Act 2013 (Cth).

    [127] See subsection 33(8) of the National Disability Insurance Scheme Act 2013 (Cth).

20. Section 34 of the NDIS Act sets out the six mandatory criteria of which the CEO, or for present purposes, the Tribunal on review, must be satisfied in relation to the funding or provision of each support provided to a participant, to ensure that they are ‘reasonable and necessary’ to assist the person. This must be considered when a statement of participant supports is being developed.

21. All supports to be funded under the NDIS must be assessed by the CEO, and/or their delegate, or for present purposes, the Tribunal, against the reasonable and necessary criterion under section 34 of the NDIS Act.

22. To be considered reasonable and necessary for the purpose of making an assessment against the criteria in section 34 of the NDIS Act, a support must firstly assist the participant to pursue his or her goals, objectives, and aspirations in the participant’s statement of goals and aspirations as required under subsection 34(1)(a) of the NDIS Act. Secondly, the support must assist the participant to undertake activities, as to facilitate the participant’s social and economic participation as required under subsection 34(1)(b) of the NDIS Act. Thirdly, the support must represent value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support as required under subsection 34(1)(c) of the NDIS Act. Fourthly, the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice as required under subsection 34(1)(d) of the NDIS Act. Fifthly, 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 as required under subsection 34(1)(e) of the NDIS Act. Sixthly, the support is most appropriately funded or provided through the NDIS, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service or support services offered as part of a universal service obligation or in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability as required under subsection 34(1)(f) of the NDIS Act.

23. The phrase ‘reasonable and necessary’ is not defined in the NDIS Act. In WRMF, the Full Federal Court, comprising Flick, Mortimer and Banks-Smith JJ, observed that the phrase ‘connotes supports which meet a threshold which justifies – be reference to the context, objects and guiding principles of the [NDIS] Act and the facts of the case – the expenditure of public funds for that support, for a particular participant’. Reasonable and necessary is a composite phrase, and each limb of which must be given work to do[128]. In the case of McGarrigle v National Disability Insurance Agency[129],(McGarrigle). Mortimer J (as her Honour then was) explained the two limbs in the following terms:

    [128] WRMF at [151].

    [129] [2017] FCA 308; (2017) 252 FCR 121.

    Whether a support is “reasonable” requires a different assessment to whether a support is “necessary”. Again, it is not necessary in the context of this proceeding to be definitive about the nature and extent of the meaning of the phrase, or its components. It is enough to observe that using the concept of necessity would appear to tie one aspect of the CEO’s assessment to an evaluation of the kinds of factors set out in s 34(1)(a) and (b) and (d). The word “reasonable” would appear to be directed at factors such as those set out in s 34(1)(c) and (f). That is not to say the meaning of each word is exhausted by the factors set out in s 34(1): rather, it is to illustrate the different work that each concept does as an adjective in the phrase “reasonable and necessary supports”.

24. Determination of whether a support meets the reasonable and necessary criterion must be made on the basis of probative evidence[130].

    [130] Ibid at [93].

25. Subsection 34(2) of the NDIS Act provides that the NDIS Rules may prescribe methods or criteria to be applied or matters to which the CEO is to have regard, in deciding whether he or she is satisfied as mentioned in any of paragraphs (1)(a) to (f).

26. Section 35 of the NDIS Act permits NDIS Rules to be made about the content of a participant’s statement of supports. Subsection 35(1) of the NDIS Act provides that the NDIS Rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding, the reasonable and necessary supports or general supports that will be funded or provided under the NDIS[131], the reasonable and necessary supports or general supports that will not be funded under the NDIS[132], and the reasonable and necessary supports or general supports that will or will not be funded or provided under the NDIS for prescribed participants[133].

    [131] See subsection 35(1)(a) of the National Disability Insurance Scheme Act 2013 (Cth).

    [132] See subsection 35(1)(b) of the National Disability Insurance Scheme Act 2013 (Cth).

    [133] See subsection 35(1)(c) of the National Disability Insurance Scheme Act 2013 (Cth).

27. Relevant to the determination of the present application are the Support Rules. The Support Rules were made by the Minister on 18 June 2013 under subsection 209(1) of the NDIS Act. They commenced operation on 1 July 2013. The Support Rules are about the assessment and determination of the reasonable and necessary supports that will be funded for participants under the NDIS[134]. They supplement and inform the way in which the criteria in section 34 of the NDIS Act needs to be considered.[135]

    [134] See rule 1.1 of Part 1 to the National Disability Insurance Scheme (Support for Participants) Rules 2013 and JQJT and the National Disability Insurance Agency [2016] AATA 478 at [23].

    [135] See WRMF at [223].

28. The Support Rules were discussed by Mortimer J (as her Honour then was) in the case of McGarrigle. Her Honour discussed, amongst other things, the purpose behind the making of the Support Rules and the types of supports that can be excluded from being included in a participant’s plan and funded under the NDIS. At [43] of her judgment, her Honour observed:

    The rules are legislative instruments to be made by the Minister: see s 209. Section 209, sub-paras (4) to (7) constrain the rule-making power to preserve the federal characteristics of the NDIS. The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (the Rules) are an important element of the legislative scheme, introducing the ability to modify the operation of ss 33 and 34 by, for example, excluding certain kinds of supports from inclusion in participant plans. It is through the Rules that the executive is able to implement, within the federalism constraints imposed in s 209, some policy decision-making about the nature and extent of supports to be provided or funded under the NDIS.

    108.Part 3 to the Support Rules sets out the criteria or considerations that the CEO of the Respondent is to use in deciding whether the CEO, or for present purposes, the Tribunal, can be satisfied in relation to whether the support(s) requested by a participant represents value for money in that the cost of the support(s) are reasonable, relative to both the benefits achieved and the cost of alternative support[136], whether the support(s) will be effective, or is likely to be, effective and beneficial for a participant, having regard to current good practice[137], whether the support(s) takes account of what it is reasonable to expect families, carers, informal networks and the community to provide[138], and whether the support(s) are most appropriately funded or provided through the NDIS rather than through other service systems[139].

    [136] See rule 3.1 of Part 3 to the National Disability Insurance Scheme (Support for Participants) Rules 2013.

    [137] See rule 3.2 of Part 3 to the National Disability Insurance Scheme (Support for Participants) Rules 2013.

    [138] See rule 3.4 of Part 3 to the National Disability Insurance Scheme (Support for Participants) Rules 2013.

    [139] See rule 3.5 of Part 3 to the National Disability Insurance Scheme (Support for Participants) Rules 2013.

1. The Tribunal does not consider the support meets the requirements of subsection 34(1)(c) of the NDIS Act. I have reached this conclusion because of the following matters.

2. As I have found above, the Applicant’s home, on the evidence, cannot feasibly be made wheelchair accessible thus by carrying out major modifications to the main bathroom and toilet, would in my view not represent value for money as required by subsection 34(1)(c) of the NDIS Act.

3. In Ms Hammond’s expert evidence, it is proposed that such modifications are not presently clinically needed by the Applicant. Thus at the present time such a support would not lead to improvements in the Applicant’s development outcomes. In having regard to this evidence, the support does not represent value for money as required by subsection 34(1)(c) of the NDIS Act.

4. There are alternative supports that are available which would cost substantially less. Ms Hammond in turn has recommended that a small modification be made to the ensuite bathroom, and that this was more practicable costing approximately $12,300. It is noted that the modifications proposed to the main bathroom by Ms Wright would cost $80,500. Thus, the Tribunal finds that the minor modifications to the Applicant’s ensuite bathroom as proposed by Ms Hammond is more cost effective in the context of subsection 34(1)(c) of the NDIS Act, and, moreover, will meet the Applicant’s present disability support status.

5. The Tribunal has taken note that the Applicant has provided three quotes which are as follows: 7 December 2020 for $74,800, 27 May 2021 for $80,750 and 23 August 2021 for $80,500. The Tribunal gives regard to the expert evidence of Mr Nasr regarding the substantially high costings. It is noted further that based on the expert evidence of Mr Nasr that a full bathroom renovation to make it fully wheelchair accessible should usually cost between $40,000 - $55,000.

6. Additionally, the Tribunal does not consider the support meets the requirements of subsection 34(1)(d) of the NDIS Act. This is because Ms Wright failed in her assessment of the Applicant’s main bathroom and toilet to use fundamental best Occupational Therapy practices. These practices firstly require Occupational Therapists do not modify a bathroom and make it fully accessible if the house cannot feasibly be made fully wheelchair accessible. Secondly, these practices require Occupational Therapists to recommend that the minimum cost be applied to begin with. The Tribunal has also taken note of the oral evidence given at the hearing by Ms Wright where she accepted under cross-examination that these principles should be applied by Occupational Therapists when conducting assessments in regard to bathroom modifications.

   The bathroom hob

7. The Applicant does not accept that the Respondent’s proposed minor modifications to his ensuite. This is because this would include leaving the hob in the ensuite bathroom. It was submitted by the Applicant that Ms Hammond and Mr Nasr had both agreed under cross-examination with what is set out in the NDIS Bathroom Modification Guidelines regarding access to showers and hobs. This is an example where the Applicant has made a generalised statement to Ms Hammond and Mr Nasr without context. Due to the de-contextualisation of the Applicant’s statements put to Ms Hammond and Mr Nasr under cross-examination, the Tribunal is of the view that little weight should be placed on the evidence on which the Applicant seeks to rely on.

8. It was submitted by the Applicant that the Tribunal should give greater weight to the evidence of Prof Nicholson that the hob would be hazardous for the Applicant and therefore needs to be removed. This evidence should also be assessed within the context of Prof Nicholson’s acceptance that the Applicant was ‘quite capable of stepping over the hob’ and however noted that with the Applicant doing this everyday may ‘trip and fall’. In further evidence given by Prof Nicholson, he stated that if a grabrail were to be installed this would not prevent any tripping over the hob as the Applicant has weakness in his hands and thus, he would not be able to successfully grab the rails as he cannot hold his weight with his hands.

9. The Tribunal has taken note of the evidence of Prof Nicholson regarding the question of whether or not the hob should be removed. The Tribunal has decided not to accept the evidence of Prof Nicholson, namely because of the following matters.

10. Prof Nicholson could not examine the Applicant’s hand functionality in person when he examined the Applicant in March 2022. He could therefore not make a finding whether or not the Applicant could grab the rail with his hand.

11. Prof Nicholson is not a Rehabilitation Specialist and is without qualifications in functional testing for people. Thus his evidence regarding the Applicant’s capacity to grab the rails is speculative and not part of his expertise.

12. There is an inconsistency in Prof Nicholson’s evidence regarding a non-slip floor, and grabrails around the bathroom in order to avoid falls. The Tribunal concludes that the recommendations of Prof Nicholson are flawed based on the fact that the installation of grabrails was based on his idea that the Applicant had the functional capacity to use a grab rail. If this was not the case, there would be no reason to install the grab rails. To conclude, the Tribunal finds that Prof Nicholson, in regard to the hob, and moreover, the capacity of the Applicant’s ability to hold the grabrail is antithetical with his support for grabrails in the bathroom for the Applicant to avoid falls.

13. There is also an inconsistency in Prof Nicholson’s evidence with that of Ms Hammond as Ms Hammond has assessed the Applicant in his home and observed the Applicant to have the functional capacity to step over the hob and to negotiate other steps within his home. Ms Hammond also recommended a grabrail in stepping over the hob. In her opinion, which was based on a functional assessment of the Applicant, he would be able to grab the rail whilst stepping over the hob. Prof Nicholson did not conduct a functional assessment of the Applicant and furthermore does not have the expertise in conducting functional capacity assessments.

14. There is a further inconsistency in Prof Nicholson’s evidence with that of Ms Wright. Ms Wright’s evidence was that grabrails had been trialled successfully when accessing the community, e.g. using public toilets. Her assessment stated that the Applicant would have the capacity to grab onto a rail with a 32mm diameter. Thus, if such structural supports were available for balance, this would enable the Applicant to negotiate stepping over the hob. However, Ms Wright indicated that she would need to conduct an assessment of the Applicant using a grabrail when stepping over the hob.

15. An overarching consideration that is addressed by the Respondent and raised by the Applicant in his closing written submissions is Mr Nasr’s evidence where he said: ‘there is no point in doing the ensuite to be honest’. The Applicant appears to conflate this statement to attempt to support his case for major modifications to his main bathroom and toilet. On re-examination of Mr Nasr, he was asked to give clarity to his statement referred to above ‘I was talking about making the ensuite fully accessible. There would be no point based on the fact that access to the whole areas is not currently fully accessible’.

16. The Tribunal thus finds that the evidence given by Mr Nasr on re-examination is inconsistent with that of the Applicant’s in regard to the hob.

    Support 4: Thermomix

17. The Applicant seeks the approval of a Thermomix.

18. On 4 November 2020, Dr Lawson performed surgery to the Applicant’s right hand. By 25 January 2021, the Applicant’s ‘thumb posture [was] much improved, and the functionality of his hand [was] better off’. Dr Lawson subsequently performed surgery to the Applicant’s left hand on 13 February 2021. It was reported by Dr Lawson that the Applicant ‘certainly has improved opposition and function’. He also reported that the Applicant has strong wrist flexors and relatively good intrinsic function.

19. In Prof Nicholson’s oral evidence it is noted that due to the limitations of Facetime that Prof Nicholson had been unable to conduct a proper assessment of the Applicant’s hands on 15 March 2022. He did however concur in his oral evidence that the results of Dr Lawson’s surgeries resulted in improved functionality to the Applicant’s hands.

20. The Tribunal has taken note of Ms Wright’s decision as an Occupational Therapist to conduct an assessment of the Applicant’s hand functionality to determine his capacity to undertake meal preparation tasks. The Tribunal has taken note that Ms Wright decided to conduct this assessment just six days following the surgery to the Applicant’s right hand and also before surgery to his left hand which increased his functional performance to his hands. In his request for the Thermomix, the Applicant has relied exclusively on Ms Wright’s expert report of 17 December 2020. This report was prepared by Ms Wright following her assessments of the Applicant. It is noteworthy that Ms Wright had not disclosed in her report of 17 December 2020 that the surgery Dr Lawson performed on the Applicant’s right hand had occurred just six days before she conducted her assessments of the Applicant.

21. The Tribunal has taken note of the oral evidence of Ms Hammond that it is appropriate for Occupational Therapists to undertake assessments of patients anywhere between six weeks to three months following surgery to enable them a full recovery from surgery. It follows that the Tribunal gives little weight to the report of Ms Wright dated 17 December 2020.

22. The Tribunal has taken note of Ms Wright’s Cooking Assessment of the Applicant on 2 August 2021. The results of this assessment are documented in Ms Wright’s report of 5 August 2021. Whilst included in her report is the fact that the Applicant had surgery to his hands, Ms Wright failed to record the improvements to the Applicant’s hand functionality. The Tribunal thus finds that Ms Wright’s recording in her report of 5 August 2021 in regard to the Applicant’s hand functionality delineates from the expert opinion expressed by Dr Lawson six weeks following Ms Wright’s report of 5 August 2021 in relation to the bilateral hand surgeries that he performed on the Applicant.

23. The Tribunal has taken note of what Ms Wright said in her oral evidence at the hearing that upon assessing the Applicant’s fine motor skills that this did not relate to hand function. The Tribunal finds that Ms Wright’s expert evidence to be incorrect as identified by Ms Hammond.

24. In relation to potential alternative supports to the Thermomix it was accepted by Ms Wright under cross-examination that she did not consider any other alternative supports to the Thermomix for the Applicant.

25. Furthermore, it is the Tribunal’s view that Ms Hammond’s expert evidence regarding Dr Lawson’s findings on the Applicant’s hand functionality that Dr Lawson records in his report of 13 September 2021 are consistent with the findings reached by Ms Hammond following the observations she made during her functional capacity assessment of the Applicant on 30 May 2022. The Tribunal therefore accepts the expert evidence of Ms Hammond and Dr Lawson in regard to the Applicant’s good functional use of his hands, and moreover, that the surgery had achieved its purpose of improving functionality to the Applicant’s hand.

26. The Tribunal accepts Ms Hammond’s expert evidence that the Applicant demonstrated that he has the capacity to prepare a meal that is easy to make. In turn, Ms Hammond’s expert evidence demonstrates to the Tribunal that the Applicant was able to safely prepare a meal within his home without the assistance of the Thermomix. Whilst the Applicant did experience some notable difficulty chopping some foods it was proposed that there are other supports available to the Applicant such as purchasing pre-chopped vegetables or using smaller aides to assist him in meal preparation tasks.

27. Further, the Tribunal accepts on the evidence that there is a therapeutic benefit to the Applicant in using his hands and functional tasks, e.g. meal preparation, which in turn is good exercise for improving hand mobility.

28. The Tribunal also takes into consideration Prof Nicholson’s evidence that stated the Applicant should use his hands as much as possible in relation to activities of daily life in order to maintain the functionality of his hands. This is supported by Ms Wright.

29. Finally, given that the Applicant’s partner works as a chef it is reasonable to expect her to assist the Applicant with the preparation of meals such as chopping up foods. Therefore, the provision of funding for a Thermomix does not take into account what is reasonable to expect the Applicant’s partner to provide by way of assistance for the purpose of subsection 34(1)(e) of the NDIS Act.

30. The Tribunal is thus not satisfied that the support of a Thermomix is reasonable and necessary as the support does not represent value for money because there are other comparable supports that would achieve the same outcome at a substantially lower cost as set out in rule 3.1(a) of the Support Rules. Therefore, the Tribunal finds that the provision of subsection 34(1)(c) of the NDIS Act is not met.

    Support 5: The complete home automation system

31. The Applicant seeks the approval of a complete home automation system.

32. The Tribunal, has for the purpose of this request, considered the report of Ms Wright dated 25 February 2021 where she recommended a complete home automation system based on the Applicant’s hand functionality or lack thereof and pain the Applicant claims he has experienced as a result of his CMTD. The Tribunal has taken particular note of the expert evidence Prof Nicholson gave to the Tribunal at the hearing where he stated under cross-examination that it would be unusual for a person with CMTD to experience pain as this is not symptomatic of this disability.

33. When the Applicant was assessed by Ms Wright on 24 February 2021 the Applicant had been three months post-surgery on his right hand and 14 days on his left which was still in a splint. The Tribunal has considered that Ms Wright’s report of 25 February 2021 did not refer to improved hand functionality which had occurred following surgery. Moreover, the Tribunal notes that there was an inconsistency in Ms Wright’s report from the findings that were reported by Dr Lawson on 13 September 2021 regarding the Applicant’s improved functionally to his hands. In the circumstances, the Tribunal gives little weight to the report of Ms Wright of 25 February 2021 nor does the Tribunal give weight to the Applicant’s statement that the home automation system ‘is essential for when my disability gives me debilitating pain, which sees me in a bedridden state, where I don’t move’…

34. The Tribunal finds on the expert evidence of Ms Hammond and Mr Nasr that the Applicant’s request for a complete home automation system does not represent value for money as there are comparable supports available to the Applicant which would achieve the same result to assist the Applicant with his limited hand functionality as required under rule 3.1(a) of the Support Rules and therefore the requirements of subsection 34(1)(c) of the NDIS Act are not met.

35. Notwithstanding the Applicant’s claims that he experiences severe pain he says is related to his CMTD, he did not discuss this with Prof Nicholson before March 2022. Moreover, the Applicant did not discuss this pain or indeed request treatment during his appointment with Prof Nicholson on 15 March 2022. The Tribunal has taken note that the Applicant’s pain was not given any regard to when he saw his treating General Practitioner and sought no treatment for pain. The Tribunal thus places great weight on the expertise of Prof Nicholson that pain is not attributable to CMTD. Pain is unlikely to occur in patients with X-linked CMTD, the condition with which is the condition of the Applicant.

36. The Tribunal has taken note that in cases where there is neuropathy pain it usually involves small fibres that are unlikely to occur in CMTD. Prof Nicholson has not treated any patients with the condition that the Applicant has with neuropathic pain and thus it is unlikely for the Applicant to experience substantial neuropathy pain. Prof Nicholson said in his evidence that it would be necessary to assess the patient for other reasons causing the pain as it is highly unlikely that a patient with CMTD would experience pain. The Tribunal places weight on Prof Nicholson’s evidence as reproduced below:

    So if it was the case that Mr Sewell was reporting frequent pain, including pain in his legs and his neck and his back, you would recommend investigations to attempt to identify the cause of that pain?--- Yes, to not assume that it’s all due to CMT and have a look to see whether there’s some other problems going on which might be orthopaedic or rheumatological.

    Thank you?---And the thing that I don’t do is because patients have a disorder that doesn’t go away, it can’t be cured, I refer patients who are complaining about pain to pain specialists but I avoid putting them on any form of opiates because it’s a long-term problem, it can produce a long-term problem. So usually look at anti-inflammatory medications and things like that which is more relevant to the CMT.

    Thank you. And you’ve nicely moved into the next topic that I want to talk to you which was about pain management. So I want you to assume, just for the purposes of this question, that to manage his pain, Mr Sewell is spending, firstly, long periods in bed, secondly, avoiding exertion and thirdly, taking opioids. And would you recommend bed rest and avoidance, and taking opioids for the management of pain?---I’d be worried about that, and I’d want him to get help about it. (Indistinct) in doing that because, you know, the end result of opiates and bed rest and things, can be (indistinct) and serious complications.

37. The Tribunal gives weight to the Respondent’s expert evidence because the Applicant has relied exclusively on Ms Wright’s evidence which gives a subjective account of his pain and is not the result of an independent specialist assessment. Rather, they are accounts based on the Applicant’s self-reporting. The Tribunal also finds that Ms Wright’s conclusions were neither empirical nor rigorous but rather based on assumptions about CMTD for which she is not an expert in. In doing so, Ms Wright misrepresented to the Tribunal the Applicant’s case of pain. The Tribunal therefore places little weight on Ms Wright’s conclusions with regard to the Applicant’s pain.

38. Given Prof Nicholson’s evidence it is the Tribunal’s finding that the pain from which the Applicant complains is not linked to CMTD. Thus, it follows that the complete home automation system will not be funded under the NDIS because pain is not attributable to the Applicant’s disability of CMTD and is therefore not related to the Applicant’s disability for the purpose of rule 5.1(b) of the Support Rules.

39. Furthermore, the Tribunal on consideration of the evidence concerning the home automation system, finds that this would be counter-productive to the Applicant because of the importance of movement in order to assist with his mobility. Therefore, this support would not be effective and beneficial to the Applicant having regard to current good practice as required under subsection 34(1)(d) of the NDIS Act.

    Supports 6 and 7: One hour per week of physiotherapy support with a physiotherapist and two hours per week of exercise physiology support with an exercise physiologist

40. The Applicant seeks the approval of an additional one hour per week of physiotherapy support with a physiotherapist and two hours per week of exercise physiology support with an exercise physiologist.

41. The Applicant has put forward the report of Mr Morrissy (18 May 2021) and the reports of Ms Olliver (11 November 2021 and an additional undated report). It was requested by the Respondent that both of these experts undergo cross-examination at the hearing in order that their evidence be tested in a hearing setting. However, this did not occur. It was submitted for the Respondent that the Tribunal should not give much weight to the reports of these two experts because they had not undergone cross-examination at the hearing.

1. It is especially important to note that Tribunal did not have evidence confirming whether the muscle strengthening work and the home exercise programme of February 2021 had been beneficial and effective for the Applicant.

2. The Tribunal has taken note from the evidence that there was a demise in the Applicant’s capacity to use his lower limbs and he was experiencing more falls. Thus, if the Tribunal were to accept the evidence it would appear that the physiotherapy treatment has not achieved its objective. Thus, in such circumstances, it would neither be beneficial nor effective for the Applicant.

3. In his oral evidence to the Tribunal, the Applicant stated that his physiotherapy treatment included manual muscle manipulation, treatment for injuries and treatment for pain. The Tribunal notes that the Applicant did not agree with the proposition put to him by Ms Fisher during cross-examination that the physiotherapy treatment involved muscle massage. However, this appears to be inconsistent with what Ms Wright said in her oral evidence. Ms Wright said in her evidence that muscle massage was a component of physiotherapy treatment.

4. Without Mr Morrissy having given evidence at the hearing, the Tribunal notes that there is no clarity surrounding the treatment of the Applicant, including whether muscle massage, muscle manipulation or other interventions were used. In her oral evidence, Ms Hammond said that massage has very limited therapeutic benefit in terms of improving functional capacity.

5. The Tribunal finds that due to the limited amount of expert evidence before it regarding the injuries and pain and its connection to the Applicant’s disability of CMTD that it is not the responsibility of the Respondent to fund these supports having regard to rule 7.5 of the Support Rules.

6. The Tribunal finds that the Applicant’s evidence that all those involved in his treatment in regard to physiotherapy and exercise physiology are not supported and thus his statement that it was agreed by these professionals that these therapies were ‘vital to managing my disease’ are thus not supported by any evidence.

7. The Tribunal has taken note of Prof Nicholson’s oral evidence that the Applicant does not need supervision for when kayaking or swimming. The Tribunal has also taken note of Prof Nicholson’s other oral evidence that kayaking should be encouraged. This Prof Nicholson said is because ‘the Applicant’s hands are not as weak as the feet, and it would be a good form of rehab’. The Tribunal thus finds that there is not sufficient expert evidence as to why an exercise programme and exercise physiologist is necessary for the Applicant, and moreover, finds that there appears to be a duplication of support between the home exercise programme and the professional services of an exercise physiologist. Therefore, the Tribunal finds that the support will not be funded by the Respondent on the basis of rule 5.1(c) of the Support Rules.

8. The Tribunal has taken note of Ms Hammond’s expert evidence which supports that either a physiotherapist or an exercise physiologist is needed, however, not both. For example, if the Applicant uses a physiotherapist for his exercises, then an exercise physiologist is not required. Furthermore, the Tribunal has also taken note of Ms Hammond’s other expert evidence that there is no need for the Applicant to be supervised whilst exercising. The Tribunal has also taken note of Prof Nicholson’s further proposition he put forward in his oral evidence that the Applicant does not need both an exercise physiologist and a physiotherapist. Rather, his expert evidence at the hearing was that just a physiotherapist was required for muscle strengthening and expertise in exercise is a sufficient support.

9. Based on the abovementioned matters, the Tribunal thus finds that there is not sufficient evidence to support the Applicant’s request for two hours per week of exercise physiology with an exercise physiologist. This is because it does not meet the requirements set out in subsections 34(1)(c) and (d) of the NDIS Act. The Tribunal therefore finds that this support does not represent value for money or would be effective and beneficial for the Applicant. However, the Tribunal does find on the evidence that there should be 15 hours per year of physiotherapy support on the basis that it meets the reasonable and necessary criterion test under section 34 of the NDIS Act.

   Support 8: 13 hours per week of 1:1 support for in-home assistance with daily living activities

10. At the hearing the Applicant submitted, by way of clarification, that his request for 13 hours of 1:1 support worker for in-home assistance with daily activities was to be considered by the Tribunal in four categories, namely, cleaning twice weekly for washing and drying of clothes and bedsheets for a total of eight hours per week. Secondly, the Applicant proposes two hours per week for meal preparation (if the Thermomix is funded). Thirdly, the Applicant proposes two hours per week for gardening, and lastly, one hour per week for miscellaneous household tasks.

11. The Tribunal has taken into consideration the recommendation of Ms Wright who recommended 15 hours of support per week which she constructed upon a baseless CANS because it was not administered for the correct usage. For example, the Tribunal has taken note of the fact that the CANS is primarily used on older adolescents and adults with traumatic brain injury or have an ABI. In her oral evidence, Ms Wright acknowledged that the CANS was neither reliable nor valid because it has been constructed for those who suffer from traumatic brain injury or an ABI. Therefore, it is outside of the scope of measurement for the Applicant’s disability. The Tribunal takes note that there is no evidence before the Tribunal of the Applicant suffering from traumatic brain injury or an ABI. In the circumstances, the Tribunal has decided to reject Ms Wright’s findings and not to take into consideration the recommendations she makes in this regard. They are baseless and cannot be relied on to make a proper assessment of whether the support sought by the Applicant meets the reasonable and necessary criterion test.

12. The Tribunal has taken note of Ms Hammond’s evidence that four hours per week for cleaning is adequate for the Applicant. The Tribunal has also taken note of Ms Wright’s evidence that four hours of cleaning per week is suffice for more difficult cleaning tasks where the Applicant required help. For example, mopping and vacuuming the floors and scrubbing the bathroom. In her evidence, Ms Wright said that the Applicant had functional capacity to wipe down sinks and benches and dusting at a level between his knees and shoulders but not positions which he could not reach. Therefore, based on this expert evidence the Tribunal finds that four hours per week for cleaning is reasonable and necessary with regard to the Applicant’s circumstances.

13. The Tribunal has taken note of the expert evidence given by Ms Hammond that the Applicant has the functional capacity to carry out laundry tasks. The Tribunal has also taken note of the Applicant’s own oral evidence where he accepted that he is able to perform laundry tasks but qualified this with him finding this difficult. The Tribunal thus takes the position that the Applicant does not require a support worker in order to complete this task. The suggestion made by the Applicant that pain made it difficult for the Applicant to perform laundry tasks is not supported by any expert evidence. The Tribunal thus finds that there is no corroborative evidence to support the proposition that a support worker is needed to assist the Applicant in this regard. Moreover, Ms Hammond’s oral evidence demonstrated to the Tribunal that the Applicant did have the functional capacity to undertake meal preparation tasks. Therefore, the Tribunal finds that the Applicant is able to undertake meal preparation tasks, and as a consequence, I am not satisfied that the support meets the reasonable and necessary criterion test.

14. Moreover, in regard to the Applicant’s request for gardening, the Tribunal is not satisfied that this support is reasonable and necessary given the fact that there is insufficient evidence before it to be able to make an assessment of whether it meets the reasonable and necessary criterion test under section 34 of the NDIS Act. The Tribunal, for the same reasons, comes to the same position on the Applicant’s request for one hour per week for miscellaneous household tasks.

    Support 9: Four hours of 1:1 support worker assistance to access the community

15. The Tribunal notes that before the commencement of the hearing, the Applicant’s case for support worker assistance to access the community for social participation in the community was in order for him to be able to engage socially and improve his self-confidence and safety issues which he said prohibited him from accessing the community independently.

16. The Tribunal has considered the Applicant’s request that this will enable him to become more engaged in the community and apply himself to social interests and to practice his communication and cognitive skills. During cross-examination, the Applicant said that he required assistance so that he could access the community safely and because he lacked self-confidence to engage socially.

17. The Tribunal has taken note of the skills of the Applicant such as his capacity to appear self-represented in this proceeding over the course of six days. Based on my observations of the Applicant over the course of the hearing, it appeared to me that the Applicant demonstrated self-confidence. For example, the way in which the Applicant articulated himself in presenting his case. It is noted that that there is a need for a degree of cognitive capacity for the Applicant to have articulated himself in the manner upon which he did. It is also evident to the Tribunal that the Applicant’s employment, past and present, required and requires a level of social attunement and cognitive skills to engage with others socially.

18. These findings are consistent with Ms Hammond’s expert evidence that the Applicant does have the functional capacity to be independent without the need for support to access the community.

19. Furthermore, on the safety issue, the Tribunal notes the Applicant’s concerns of having falls in the community. The Tribunal thus turns itself to the fact that the Applicant did not report any falls to his General Practitioner or Prof Nicholson and thus cannot apply any findings to this issue. However, the Tribunal has taken note of the oral evidence Prof Nicholson gave to the Tribunal, namely that the Applicant be referred to a rehabilitation specialist and also that there be a review carried out of the Applicant’s AFO splints as this may improve the Applicant’s stability whilst being mobile and will be preventative of falls. Finally, Prof Nicholson also said in his oral evidence that he recommended that the Applicant use walking aides for balance and mobility.

20. For the reasons outlined above, the Tribunal finds on the evidence that it cannot be satisfied that this support is reasonable and necessary.

    DECISION

    512.Pursuant to subsection 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision under review and remits the matter to the Chief Executive Officer of the National Disability Insurance Agency with a direction that the following reasonable and necessary supports be included in the Applicant’s Plan over a 12-month period:

    1.Funding in the amount of $16,900.00 for the construction and installation of a pathway to be included in the Applicant’s Plan as recommended by Deborah Hammond, Occupational Therapist in her Functional Capacity Assessment Report dated 28 July 2022 and by Peter Nasr, Building Consultant in his Feasibility Assessment Report dated 28 July 2022.

    2.Funding in the amount of $12,300.00 for minor modifications to the Applicant’s ensuite bathroom as recommended by Deborah Hammond, Occupational Therapist in her Functional Capacity Assessment Report dated 28 July 2022 and by Peter Nasr, Building Consultant in his Feasibility Assessment Report dated 28 July 2022.

    3.Funding in the amount of $14,780.00 to modify the Applicant’s home for minor modifications as recommended by Deborah Hammond, Occupational Therapist in her Functional Capacity Assessment Report dated 28 July 2022 and by Peter Nasr, Building Consultant in his Feasibility Assessment Report dated 28 July 2022:

    (a) Changing the door hardware on internal and external doors;

    (b) Changing light switches and power points to large format switches;

    (c) Installing a sensor light for night-time bathroom use; and

    (d) Using wireless charging for electronic devices.

    4.As agreed between the parties, funding to the Applicant’s Capacity Building Supports Budget for nine x 30-minute podiatry visits per year (4.5 hours per year), plus the amount of $120.00 for an annual biomedical assessment and the amount of $160.00 for an annual podiatrist report.

    5.Funding to the Applicant’s Capacity Building Supports Budget for one hour of physiotherapy per month (12 hours per year), plus three hours for report writing and consultation with other health professionals (15 hours in total).

I certify that the preceding 512 (five hundred and twelve paragraphs are a true copy of the reasons for the decision herein of

...............................[SGD].........................................

Associate

Dated: 31 August 2023

Date(s) of hearing:	19, 20 and 30 September 2022 and 4, 5 and 25 October 2022
Date final submissions received:	1 March 2023
Applicant:	In person
Advocate for the Applicant:	Ms K Burgess
Counsel for the Respondent:	Ms M Fisher
Solicitors for the Respondent:	Ms M Scriva, Sparke Helmore Lawyers