Sing and National Disability Insurance Agency

Sing and National Disability Insurance Agency [2018] AATA 4411 (26 November 2018)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2017/3891
Re:Fiona Sing
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:26 November 2018
Place:Sydney

The reviewable decision is affirmed.
...............................[SGD].........................................
Mrs J C Kelly, Senior Member
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME - Applicant relies on wheelchair for mobility - Applicant participates in competitive wheelchair tennis – supports sought sports/exercise physiologist to attend gym sessions and tennis coaching - whether supports relate to Applicant’s disability as required by National Disability Insurance Scheme (Supports for Participants) Rules 2013 rule 5.1(b) – whether supports are reasonable and necessary supports pursuant to subsections 34(1) of the National Disability Insurance Act 2013 – whether supports 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 - decision affirmed
LEGISLATION
National Disability Insurance Scheme Act 2013 (Cth) ss 3, 4, 14, 17A, 21, 24, 31, 33, 34
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) rr 2, 3, 4, 5,
CASES
McGarrigle v National Disability Insurance Agency [2017] FCA 308
Mulligan and National Disability Insurance Agency [2015] AATA 974
Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) [1979] AATA 179; (1979) 2 ALD 634
SECONDARY MATERIALS
National Disability Insurance Scheme Operational Guideline – Planning
National Disability Insurance Scheme Operational Guideline – Including specific types of supports in plans
National Disability Insurance Scheme Operational Guideline - Overview of the NDIS
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
26 November 2018
Introduction

Ms Sing is a participant in the National Disability Insurance Scheme (NDIS). She suffers from a functional neurological disorder and relies on a wheelchair for mobility. She seeks to have approved in her NDIS plan, funding from the National Disability Insurance Agency (the Agency) for:
·A sports/exercise physiologist to attend her gym sessions for three one hour sessions per week at a cost of $9,360 per year based on an hourly rate of $60, and
·Tennis coaching for three one hour sessions per week, at a cost of $8,563.50 a year.
In 2017, Ms Sing sought review of the funded supports in her 2016/17 plan and requested additional supports. The reviewable decision was an internal review decision made on 30 May 2017. Various supports had been refused and were in issue, however, during the course of these proceedings the parties resolved the matter to the extent that only the two supports listed above were in dispute.
The issues to be decided are whether the supports are:
(i)related to Ms Sing’s disability as required by rule 5.1(b) of the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (the Support Rules); and if so,
(ii)whether they are reasonable and necessary supports pursuant to subsections 34(1)(c), (d) and (f) of the National Disability Insurance Act 2013 (the Act).
If Ms Sing is successful, the parties agree that the tennis coaching can be self-managed.
Background
Ms Sing is a 48 year old indigenous woman. She has a 12 year old daughter. They live in a regional city in the New England area of New South Wales. Ms Sing suffered paraplegia after an operation on her right knee on 27 April 2015. She has used a wheelchair ever since. Ms Sing took up wheelchair tennis about five months after the operation. She volunteers as a regional co-ordinator for Wheelchair Sports NSW in the North West New England region. In her words, she helps to spread the message that anything is possible and that whether a person has an intellectual or physical disability, they should get out there and play sport, especially for their physical health and mental wellbeing. She participates in competition level wheelchair tennis and at the date of the hearing had competed in six competitions.
The scheme regulating the NDIS
The scheme regulating the NDIS is extensive, complex and repetitive. Relevant in this case are provisions of the Act, the Support Rules, the Operational Guideline - Planning (the Planning OG), the Operational Guideline – Including specific types of supports in plans (the Specific Supports OG) and the Operational Guideline, Overview of the NDIS (the Overview OG).
The rules form part of the legislation.[1]
[1] Section 209 of the Act.
The Chief Executive Officer (CEO) of the Agency has issued Operational Guidelines to assist in decision-making and the performance of functions under the Act. The Operational Guidelines represent policy that should be applied by the Tribunal unless there is a cogent reason not to do so.[2]
[2] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634; Mulligan and National Disability Insurance Agency [2015] AATA 974 at [31]).
Participants’ plans
Part 2 of Chapter 3 of the Act is about participants’ plans. Section 31 of the Act sets out principles relating to plans.
Section 33 of the Act specifies matters that must be included in a participant’s plan. They include the participant’s statement of goals and aspirations prepared by the participant, and the statement of participant supports, prepared with the participant and approved by the CEO, that specifies both the general supports that will be provided to or in relation to the participant by the Agency, and the reasonable and necessary supports that will be funded under the NDIS pursuant to section 34 of the Act. The Support Rules were made for the purposes of sections 33 and 34 of the Act.
Ms Sing’s goals and aspirations, and supports
In the NDIS plan approved on 9 November 2016, which is the subject of this review, Ms Sing specified the following “goals I want to work toward during this plan”:
My First Goal is:
During this plan: To continue to have my everyday support needs met and to understand how to use my NDIS supports effectively.
My Second Goal is:
During this plan: To have support and coaching to improve tennis skills to be able to compete in international tournaments and wheelchair tennis in the 2020 Paralympics.
My longer term goals and aspirations are:
Goal: To receive support to enable me to travel to wheelchair tennis tournaments
Relates to: Choice and control over my life
Goal: To continue to go (sic) the gym, 2-3 times a week to maintain my strength, increase movement and improve my flexibility.
Relates to: Health and wellbeing
Goal: To have 1:1 support to access the pool at the gym to assist with fitness and maintaining strength.
Relates to: Health and well-being
Goal: To have support to find a suitable wheelchair accessible home as the one I currently rent is in the process of being sold.
Relates to: Where I live
Goal: To be able to spend time with my daughter, with her not as my carer.
Relates to: Relationships
Among her “community and mainstream supports”, Ms Sing identified:
·North West Tennis Academy
·Local Gym including Sports Physiologist weekly
·Occupational Therapist who has prescribed suitable wheelchair for tennis
Another plan was approved on 22 January 2018. Ms Sing’s goals were the same as in the previous plan. The community and mainstream supports previously identified were also in the plan.
No argument was raised by either party that the Tribunal had no jurisdiction or that there was no utility because these proceedings relate to the earlier plan.
Are the supports Ms Sing seeks related to her disability?
Rule 5.1(b) of the Support Rules provides that a support will not be provided or funded under the NDIS if it is not related to the participant’s disability. If the Agency’s argument is correct, that neither support is related to Ms Sing’s disability as required by rule 5.1(b) of the Support Rules, that would be the end of the case and it would be unnecessary to consider whether Ms Sing satisfied the criteria in section 34 that are in dispute. It is therefore appropriate to address that argument first.
The Respondent’s contentions
In support of its submission that the attendance of an exercise physiologist at the gym is not related to Ms Sing’s disability, the Agency referred to the evidence of Ms Thompson, Occupational Therapist. In her report dated 13 October 2017, Ms Thompson acknowledged that daily exercise is a recommended therapy for all people to maintain health and wellbeing. The Agency argued that it may be inferred that the recommendation applies irrespective of “whether an individual has a disability or impairment or not”. Ms Thompson stated that consideration should be given to “alternatives for client to meet training requirements more independently/ with less support”. The Agency argued that she was not positively advocating that Ms Sing attend the gym with an exercise physiologist as the necessary or only means by which Ms Sing can maintain her health and wellbeing. Further, Ms Thompson provided those comments in the context of Ms Sing’s “goal driven training”. The Agency argued that the request for an exercise physiologist to attend the gym sessions was related to Ms Sing’s desire to achieve success at an elite level which applies to all individuals seeking to pursue that goal and not specifically to people with a disability. Putting it another way, the Agency argued that the NDIS provides supports that alleviate a substantial reduction in functionality to be equal to others. Ms Sing is seeking supports that go beyond what is available to others. She is seeking to achieve an extraordinary level of performance. The reasonable and necessary supports she seeks are not to put her on an equal footing with other members of the community, but to assist her to compete at an elite level.
The Agency referred to the general principle in section 4(1) of the Act, that people with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development, and to the Operational Guideline, Overview of the NDIS, paragraph 4.1 which says, in part:
The NDIS is a new way of providing individualised support for people with disability, their families and carers. The NDIS will provide all Australians with a permanent and significant disability, aged under 65, with the reasonable and necessary supports they need to live an ordinary life.
The Agency emphasised the phrase “an ordinary life”.
The Agency also put the following argument. There was no suggestion on the evidence that support to able bodied tennis players was any different to that available to tennis players with a disability. If a person can perform at a certain level, there will be assistance. All people in regional centres are at a disadvantage compared to those located in Sydney where Tennis Australia’s National Academy is located. That is not related to disability. Similarly, finances and family circumstances that limit a person’s ability to move to Sydney or capacity to pay for tennis coaching or for the attendance of a sports physiologist at a gym session, are not related to disability.
The Applicant’s contentions
On behalf of the Applicant, the following argument was put. Rule 5.1(b) of the Support Rules does not require that the support is directly related to the disability. It is sufficient if the support required stems from the disability. Ms Sing is playing wheelchair tennis because she has a disability and had the motivation to compete in that sport at an elite level. She requires the supports to do so.
Consideration
Rule 5.1(b) is concerned with “disability”. What is Ms Sing’s disability? “Disability” is not defined in the Act or the rules.
Section 21 sets out the access criteria to become a participant in the NDIS. Section 21(1)(c)(i) requires that the CEO is satisfied, at the time of considering a request for access to the NDIS, that the person meets the disability requirements in section 24.
It is accepted that Ms Sing satisfies the disability requirements in section 24 which provides:
(1) A person meets the disability requirements if:
(a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or to one or more impairments attributable to a psychiatric condition; and
(b) the impairment or impairments are, or are likely to be, permanent; and
(c) the impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities:
(iv) mobility;
(v) self‑care;
(vi) self‑management; and
(d) the impairment or impairments affect the person’s capacity for social or economic participation; and
(e) the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
The objects of the Act include to give effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities (CRPD). Article 1 of the CRPD states:
Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.
The parties did not clearly define Ms Sing’s “disability”. The Tribunal infers that both parties assumed that her disability is her inability to mobilise because of paraplegia and her consequential needs, including to use a wheelchair. It proceeds on that basis.
The Online Macquarie Dictionary includes the following definitions:
Relate, 4. to have some relation (to).[3]
Relation, noun 1. an existing connection; a particular way of being related: the relation between cause and effect.[4]
[3]
[4]
Ms Sing provided an August 2018 Report entitled “Participation in Wheelchair Tennis in Australia” (the joint report). It was written by Brenda Tierney, the Head of Tennis Inclusion – Performance Wheelchair with Tennis Australia, with the assistance of Vernon Cheung, the Tennis Performance Wheelchair Coach NSW.[5] Mr Cheung has 25 years’ tennis coaching experience at all levels, with the last three years specifically focused on high performance wheelchair tennis. Mr Cheung also provided a separate report prepared in February 2018 at the request of the Agency (Mr Cheung’s report).
[5] Brenda Tierney has a Diploma in Business Management. Vernon Cheung has a Bachelor of Health Science (Human Movement) and is a qualified Club Professional tennis coach with Tennis Australia.
From those reports, the following is apparent:
·There are two categories of International Tennis Federation (the ITF) wheelchair competition tennis, open and quad. In general terms, a player must have a medically diagnosed permanent mobility related physical disability resulting in a substantial loss of function in one or both lower extremities to compete in the open category, and a quad player must also have at least one of four functional disabilities relating to the upper extremities
·The pinnacle of wheelchair tennis is the Paralympics, an event for “elite High Performance athletes”.
·There are six levels of competition on the ITF wheelchair tennis tour, ranging from Grand Slams to Futures, which is the entry level tournament for recreational or developing players. Depending on ranking, players are restricted in the level of events in which they can compete.
·The three Grand Slam events are the Australian and US Opens and Wimbledon.
·There are about 100 ITF-sanctioned wheelchair tennis tournaments around the world catering for different levels of player ability and competitiveness.
·Australia has three ITF-sanctioned Futures tournaments (NSW, ACT and QLD).
·To play at an enjoyable level, a person new to wheelchair tennis who wants to play regularly at a recreational or competitive level, would need to have one to two lessons with a coach per week plus maybe one playing session with a friend or colleague. Private lessons are expensive ($70 to $90 per hour). Generally, until a player can rally with control for about two to three shots they will continue to have private lessons and then ideally transfer to group lessons, which are cheaper but may not be available because of a lack of wheelchair players, especially at a similar level, or integrate into an able-bodied lesson.
·A coach teaching wheelchair tennis should have at least Club Professional coach qualification, which recognizes competency in coaching, including wheelchair users.
·Wheelchair tennis is physically quite a demanding sport. The mobility skills required take time to develop and are constantly being worked on even at the representative level. Functionality of the upper extremities and trunk determine how fast someone can pick up the sport.
·Fitness level requirements include grip strength to hold the racquet while pushing the wheelchair, co-ordination to implement pushing skills with the racquet skills, upper body strength to explosively push and brake in the chair, and enough cardiovascular fitness to rally two to three shots minimum.
·It is not necessary to go to the gym regularly to play recreationally but going to the gym will definitely improve trunk stability and overall strength which will aid performance greatly.
·Most wheelchair athletes would need a qualified trainer to prescribe a conditioning program which they could do by themselves or with assistance from a trainer or from someone who has basic knowledge of the exercises which cannot be done alone. The joint report stated that a high performance athlete requires conditioning in power, stamina and strength, two to three times per week in the gym, including daily exercises for injury prevention.
·The physical benefits of participating in wheelchair tennis included:
oIncreased and improved mobility and movement;
oImproved chair skills for daily chair use; and
oGeneral health for physical activity.
·Wellbeing benefits of participating in wheelchair tennis include:
oConnecting with the community and other chair users;
oFostering purpose and discipline;
oHaving a goal to work towards; and
oPotential to assist in mental aspects of injury recovery.
·The joint report defines high performance level of wheelchair tennis as athletes who are representing Australia at the Paralympic Games, at the World Team Cup or who train year around for a minimum of five days per week, playing approximately nine to 15 tournaments per year and travelling for 20-25 weeks for that purpose.
·The joint report does not specify how often a person would need to attend training with an appropriately qualified tennis coach per week, but refers to high performance athletes who have reached a pre-determined ITF world ranking, being offered a National Academy athlete support agreement by Tennis Australia and who train at one of the National Academies and have access to resources including physiotherapy, nutritionist services, strength and conditioning coaching, gym access and tailored gym programs and sports psychology/athlete wellbeing services.
·Other possible funding sources depend on ranking, age, or other criteria that were not specified. Otherwise, tennis operates on a “user pays” system.
The evidence of Ms Sing, of “RN Sarah Hitchcock for Dr Sue Amarasena”, Mr Campbell, a tennis coach, and Mr Riley, psychologist, support a finding that Ms Sing benefits physically and psychologically from training and competing in wheelchair tennis. Ms Sing’s evidence was that as a result of her training and playing competition tennis, she is more physically fit and relies less on support workers than she did previously in relation to her disability.

The Agency relied on Chapter 10 of the Planning OG which is entitled “Deciding to include supports in a participant’s plan”. Clause 10.1 provides relevantly:
The general criteria for supports provide that a support will not be provided or funded under the NDIS if:
The support is not related to the participant’s disability, for example, it is expected that the NDIA will generally not fund household items that are not related to a participant’s functional limitations and would normally be purchased by any person, i.e. general household furniture or appliances (rule 5.1(b) of the Supports for Participants Rules).
The Agency also cited Chapter 10 of the Specific Supports OG that provides additional guidance on the preparation and review of a participant’s plan in relation to recreation supports. Relevantly, it provides:
Recreation supports which consist of aids and equipment are generally funded at a level that allows independence at an entry level to the activity and are not intended to facilitate participation in representative competitions (for example, competing in State or National Championships), nor professional level involvement (for example, competitions with significant prize money or performance contracts).
Before including a recreation support in a participant’s plan, the NDIA must be satisfied that all options and opportunities available to the participant in their local community have been explored.
……
In relation to recreation supports, the NDIA must consider, amongst other matters, whether the support relates to a participant’s disability
The NDIA will fund recreation supports that are related to the participant’s disability, not expenses that are ordinarily funded from a person’s income. For example, the NDIA may fund a support worker to assist a participant to prepare and participate in a recreational activity.
The provisions of both the Planning OG and the Specific Supports OG reference rule 5.1(b) of the Support Rules, explicitly in the first case and implicitly in the second. The Agency also relied on Chapter 10 of the Specific Supports OG to support its argument that the supports are not reasonable and necessary in accordance with section 34 of the Act. That question is discussed later in this decision.
The Tribunal finds that the example of a support that is not related to disability set out in clause 10.1 of the Planning OG does not support the Agency’s submission.
The Tribunal does not accept that the supports applied for are not related to Ms Sing’s disability pursuant to rule 5.1(b) of the Support Rules. The supports Ms Sing has applied for address her fitness, particularly in her trunk and upper limbs, and her skills, which enable her to play competition tennis while confined to a wheelchair.
The Agency agreed to fund a sports wheelchair for Ms Sing to enable her to play wheelchair tennis. It stated that there may be circumstances in which it would fund tennis coaching or attendance by a sports physiologist. The Tribunal infers that that statement relates to recreational wheelchair tennis.
The language of the Act and the Support Rules does not support a construction that playing competitive wheelchair tennis is not related to Ms Sing’s disability whereas playing recreational wheelchair tennis is. It does not support a construction that playing wheelchair tennis is not related to her disability.
Ms Sing seeks the supports to pursue her goals and aspirations specified in her statement of goals and aspirations in her plan. Section 33(5)(a) of the Act requires the CEO of the Agency to have regard to that statement when deciding whether or not to approve a statement of participant supports.
The objects of the Act include to support the independence and social and economic participation of people with disability (subsections 3(1)(c)) and to promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community (subsection 3(1)(g)).
Subsection 3(3) of the Act provides that in giving effect to the objects of the Act, regard is to be had to the need to ensure the financial sustainability of the National Disability Insurance Scheme.
The general principles guiding actions under section 4 of the Act include:
(1)People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development.
(2)People with disability should be supported to participate in and contribute to social and economic life to the extent of their ability.
(5)People with disability should be supported to receive reasonable and necessary supports including early intervention supports.
(11) Reasonable and necessary supports for people with disability
should:
(a)support people with disability to pursue their goals and maximise their independence; and
(b)support people with disability to live independently and to be included in the community as fully participating citizens; and
(c)develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment.
(16)Positive personal and social development of people with disability,…, is to be promoted.
(17)It is the intention of the Parliament that the Ministerial Council, the Minister, the Board, the CEO, the Commissioner and any other person or body is to perform functions and exercise powers under this Act in accordance with these principles, having regard to:
(b)the need to ensure the financial sustainability of the National Disability Insurance Scheme.
The funding of the supports is for the purpose of assisting a person with a disability, Ms Sing, to realise her potential for physical and social development and to participate in social and potentially, economic life if she is successful, in accordance with section 14(a)(i) and (ii) of the Act).
Chapter 3 of the Act is entitled “Participants and their plans”. Part 1A includes section 17A which is entitled “Principles relating to the participation of people with disability”. Relevantly, subsection 17A(3) provides:
The National Disability Insurance Scheme is to:
(c) support people with disability to participate in, and contribute to, social and economic life, to the extent of their ability.
Section 31 of the Act sets out principles relating to plans. Relevantly, plans should:
(a)       be individualised; and
(b)       be directed by the participant; and
(e)consider the availability to the participant of informal support and other support services generally available to any person in the community;
(h)advance the inclusion and participation in the community of the participant with the aim of achieving his or her individual aspirations; and
(i)        maximise the choice and independence of the participant; and
(j)        facilitate tailored and flexible responses to the individual goals and needs of the participant.
Section 34(1) sets out the criteria of which the CEO must be satisfied for the purposes of specifying in a statement of participant supports, the general supports that will be provided and the reasonable and necessary supports that will be funded.
The Support Rules “are about assessment and determination of the reasonable and necessary supports that will be funded and the general supports that will be provided for participants …” (Rule 1.1).
They repeat provisions of the Act, for example Rule 2.3 repeats almost exactly the terms of section 34(1). Rule 2.2 requires the CEO to have regard to the participant's statement of goals and aspirations when deciding whether to approve a statement of participant supports. Rule 2.5 provides that in administering the NDIS and in approving each plan the CEO must have regard to the objects and principles of the Act including the need to ensure the financial sustainability of the NDIS and the principles relating to plans.
Part 3 of the Support Rules sets out detailed considerations relevant to assessing proposed supports in relation to:
·value for money,
·effective and beneficial and current good practice,
·reasonable family, carer and other support, and
·supports appropriately funded or provided through the NDIS.
Part 4 of the Support Rules addresses needs assessment when the CEO is approving a statement of participant supports under section 33 of the Act. Part 5 sets out general criterial for supports and supports that will not be funded. Part 6 deals with formal matters including definitions. Schedule 1 sets out considerations relating to whether supports are most appropriately funded through the NDIS.
The Tribunal does not accept that the Act and Support Rules require a finding that the supports that Ms Sing seeks are not “related to” her disability. It does not discern in the legislative scheme the distinction made in Chapter 10 of the Specific Supports OG that support for a recreational level of activity is related to disability but support to a competitive level is not. It follows that it does not accept that the reference to an “ordinary life” in paragraph 4.1 of the Overview OG requires a finding that the supports Ms Sing seeks are not related to her disability. The language of the Act and rules is general and aspirational. The Tribunal does not apply the provisions of the Support OG and the Overview OG that it finds are not consistent with the Act and rules.
The Tribunal has taken into account the provisions in the Act and the Support Rules that require the consideration of the need to ensure financial sustainability, but does not accept those provisions require the conclusion that the supports that Ms Sing seeks are not “related to” her disability.
Reasonable and necessary supports
Section 34(1) of the Act requires that the CEO be satisfied of all of the following in relation to funding of reasonable and necessary supports:
(a)       the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
(b)       the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
(c)       the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d)       the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e)       the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f)        the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(i)        as part of a universal service obligation; or
(ii)       in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
The Federal Court in McGarrigle v National Disability Insurance Agency [2017] FCA 308; 252 FCR 121 at 91 has provided some guidance on the meaning to be attributed to “reasonable and necessary supports” in section 34(1) of the Act.
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.
The Agency argued at the hearing that the supports for which Ms Sing seeks funding did not satisfy three of the six criteria listed in subsection 34(1): subsection 34(1)(c), (1)(d) and (1)(f). The Agency’s written Statement of Position had not specified subsection 34(1)(d).
Therefore, subject to the argument that the supports are not related to Ms Sing’s disability contrary to Support Rule 5.1(b), the Agency concedes that the criteria in subsections 34(1)(a), (b) and (e) are satisfied.
Do the supports sought represent value for money in accordance with section 34(1)(c)? Relevantly, Support Rule 3.1 states that in deciding whether funding for a provision of a support represents value for money, the following must be considered:
(a) Whether there are comparable supports which would achieve the same outcome at a substantially lower cost;
(b) Whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long-term benefit to, the participant;
(c) Whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);
(e) Whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides;
(f) Whether the support will increase the participant's independence and reduce the participant's need for other kinds of supports (for example, some home modifications may reduce a participant's need for home care).
Ms Sing’s counsel argued that section 34(1)(c) of the Act was satisfied because Ms Sing believes that the training and coaching and competing in tennis tournaments has the benefit that she does not require other supports for mental health and physical wellbeing.
Ms Sing is not competing at a “high performance level” referred to in the joint report or at a representative level referred to in Mr Cheung’s report, but aspires to do so. She is competing in futures level competitions, which is the entry level tournament for recreational or developing players. She has played six competitive matches and planned, as of the hearing date, to play a further four matches from September 2018 to January 2019.
Ms Sing did not specify hours of tennis coaching in her goals or aspirations in her plan. In her 25 October 2017 statement, she wrote that she trained twice a week for an hour with her tennis coach. The Applicant’s statement of position claimed that she was seeking funding for tennis coaching for three hours a week. The document entitled “Cost of Applicant’s reasonable and necessary supports” filed on behalf of Ms Sing claimed the sum of $8,563.50 for tennis coaching.
There were in evidence a number of letters and two invoices in relation to Ms Sing’s tennis coaching. In an undated letter that the Tribunal received on 27 October 2017, Mr Campbell, from the tennis academy where Ms Sing trains, wrote:
Fiona has been coached at the Academy since January 2016 and in that time progressed to a level where this year she was able to compete in her first wheelchair tournament where she was runner up in the ladies doubles this year, quite an achievement. Fiona will soon head off to Canberra and Sydney to compete in more major wheel chair events.
Fiona has big dreams. Olympic Games selection, competing in the Australian and becoming a world class tennis athlete touring the globe is where she sets her sights. After two years of coaching with us we believe those dreams are achievable. However, those aspirations are not the most important part of Fiona’s tennis journey. What tennis has done for Fiona as a person is amazing. Fiona has changed so much as a person since taking up the sport of tennis on a wide range of levels. Most notably to us is her transformation from someone who was angry at the world and feeling like a victim to a confident, driven woman with a purpose in life. Its (sic) been unbelievable to watch.
Wheelchair Tennis Australia have also been behind Fiona’s tennis progression. Daniel (her coach) works closely with (Tennis Australia) developing Fiona’s program. (Tennis Australia) have also been up to Tamworth to work with Fiona.
… We wish to stay involved and help Fiona reach her goals and dreams, but more importantly providing her with something she loves that helps her to be a productive citizen. However, coaching costs money and this year we have had no payment for the service we provided… Our normal rate is $80 per hour. We charge Fiona $45 per hour. Fiona has told us all year that money will soon be available which is allocated to pay for her tennis with the … Academy. If payment does not come soon we will unfortunately have no option but to stop Fiona’s tennis with us. That is the last thing we want to see happen as we feel it will have a very negative impact on Fiona’s life.
Mr Campbell described the many positive aspects that tennis had brought to her life, including leading to a life with purpose, confidence building, the chance to travel, train and compete with other wheelchair athletes, being an active participant in the community, improving fitness with regular exercise and making positive friendships and relationships not possible without tennis.
The two invoices were on letterhead which contained Mr Campbell’s name. The first was dated 14 December 2016 and was for Terms 2, 3 and 4 in 2016 in the sum of $9,190. The document does not indicate the cost or number of lessons but states that Ms Sing:
Has also set the long term goal of making the Special Olympics team in 2020. Without this volume of lessons that goal will not have a chance of becoming a reality.
The second invoice was dated 17 September 2017 and was for Terms 1, 2, 3 and 4 in 2017, in the amount of $8,563.50. That was the sum claimed for tennis lessons in the document entitled “Cost of Applicant’s reasonable and necessary supports” filed on behalf of Ms Sing. Read in conjunction with Mr Campbell’s undated letter, it shows that Ms Sing was charged $45 per lesson for 164 lessons, a total of $7,380 plus GST. The usual charge per lesson was $80 per lesson. The invoice includes charges for a racquet, grips and restring. Based on the two invoices, the Tribunal finds that there are four terms in a tennis coaching year and 164 lessons represents more than two lessons a week. It also concludes that Ms Sing was having more lessons per week during 2016 than she did in 2017, based on the limited time period and higher cost of the latter and taking into account that the cost per lesson may have been more than $45.
Ms Sing’s evidence was that she did not have other people to play with. She claimed that the local able-bodied tennis players would not play with her and that she had put up a post on Facebook with no response. She told the Tribunal that she just hits with a friend twice a week and that support workers do not know how to play. In one of her written statements she wrote that she played with a friend for four hours a week.
The Tribunal accepts that Ms Sing is driven to pursue her aspiration, however, it found her evidence somewhat exaggerated and unreliable. For example, she told the Tribunal that Mr Campbell was the only person who had the expertise to coach her, but his evidence in the undated letter was that another person, Daniel, was coaching her. It found her evidence about not being able to find people to play with exaggerated. She was emphasising her need for funding for tennis coaching.
The Tribunal is not satisfied that the funding sought for two or three hours of tennis coaching a week represents value for money in that the cost of the support is reasonable relative to the benefits achieved and the cost of alternative support.

The “outcome” of two or three hours of tennis coaching is not apparent from the evidence. The Tribunal accepts that Ms Sing has benefited from playing competitive wheelchair tennis in the ways Mr Campbell described. However, Mr Campbell’s evidence did not address what the lessons involve or achieve or why they are necessary or how many are necessary for a particular outcome. It may be that Ms Sing determines the number of lessons she has based on her belief that it is benefiting her. There is no evidence of the cost of alternative support such as group lessons with able-bodied players, an option raised in the joint report.
Because the outcome of the training is not apparent on the evidence, the Tribunal is not satisfied that there is evidence that the support will substantially improve the life stage outcomes for, and be of long-term benefit to, Ms Sing. In making that finding, it has taken into account her evidence that as a result of her training and playing competition tennis, she is more physically fit and relies less on support workers that she did previously in relation to her disability. However, she has attained that level of fitness. The extent to which the claimed support impacts on her fitness is not apparent from the evidence.
It follows that the Tribunal is not satisfied that the funding of the support is likely to reduce the cost of funding of supports for Ms Sing in the long term.
The Tribunal accepts that the cost of the support is probably less than the cost of support of the same kind in the area where Ms Sing resides.
It is not satisfied that the support will increase Ms Sing’s independence and reduce her need for other kinds of supports.
In making those findings, the Tribunal has taken into account Mr Riley’s belief that Ms Sing:
would experience considerable negative emotional consequences if she was unable to continue tennis training and competition, such as the development of Depression.
He held one consultation with Ms Sing. He did not diagnose that she was suffering a mental health condition but noted that there was reference in material to a brain injury suffered by Ms Sing. There is no medical evidence about such a condition although there are various references to Ms Sing reporting to have suffered such an injury.
The Tribunal accepts that Ms Sing would experience negative emotional consequences if she was unable to continue to play competitive tennis. It does not accept that not obtaining the funding she seeks for two or three tennis lessons a week will prevent her from continuing to play competitive tennis.
The Tribunal is not satisfied that section 34(1)(c) is satisfied in respect of two or three hours of tennis coaching a week.
Ms Sing did not specify that she needed supervision from a qualified exercise physiologist or personal trainer in her goals. Her goal was:
To continue to go (sic) the gym, 2-3 times a week to maintain my strength, increase movement and improve my flexibility.
Ms Sing justified having a qualified exercise physiologist attend the gym with her for an hour three times a week to ensure that she did the exercises correctly and did not injure herself and to assist her with the exercises. Mr Riley considered that there was no psychological reason for Ms Sing having assistance in a gym. He did not consider that she would be deliberately non-compliant with an appropriate exercise schedule prepared by an accredited exercise physiologist or personal trainer.
There is no evidence from an exercise physiologist or from a personal trainer justifying three hours a week of supervised training. There are only invoices. Ms Sing told the Tribunal that her current trainer is studying to become a sport or exercise physiologist. He is a personal trainer, as stated on his invoices. There is no expert evidence of an “outcome” of such supervision. There is evidence that Ms Sing has funds available to pay for the preparation of a program by an appropriately qualified person and can have support workers assist her to implement the program. The Tribunal does not accept Ms Sing’s evidence that support workers are incapable of doing that.
The evidence does not demonstrate that the support claimed will substantially improve the life stage outcomes for or be of long-term benefit to Ms Sing. Nor does it demonstrate that funding the support is likely to reduce the costs of the funding of supports for Ms Sing in the long term. There is no evidence of the cost of comparable supports in the area where Ms Sing resides. The evidence does not demonstrate that the support will increase Ms Sing’s independence and reduce her need for other kinds of supports.
The Tribunal does not accept that the funding sought for a sports/exercise physiologist to attend gym sessions with Ms Sing for three one hour sessions per week at a cost of $9,360 per year represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the costs of alternative support. This conclusion is supported by the evidence of Ms Thompson.
The Tribunal does not accept that section 34(1)(c) is satisfied in relation to the attendance of a sports/exercise physiologist at Ms Sing’s gym sessions for three one hour sessions a week.
As both supports do not satisfy section 34(1)(c), it is unnecessary to consider the other criteria in section 34(1) in respect of the supports sought.
Decision
For the above reasons, neither of the supports sought satisfied section 34(1). The reviewable decision is affirmed.

I certify that the preceding 81 (eighty-one) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

..................................[SGD]............ ..........................
Associate
Dated: 26 November 2018

Date(s) of hearing: 5 September 2018

Counsel for the Applicant: Mr L Karp

Solicitors for the Applicant: Mr M Turner, Legal Aid New South Wales

Solicitors for the Respondent: Mr K Eskerie, Sparke Helmore Lawyers

[2018] AATA 4411

26 November 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Standing

Statutory Construction

Procedural Fairness

Date(s) of hearing:	5 September 2018
Counsel for the Applicant:	Mr L Karp
Solicitors for the Applicant:	Mr M Turner, Legal Aid New South Wales
Solicitors for the Respondent:	Mr K Eskerie, Sparke Helmore Lawyers