Smith and National Disability Insurance Agency
[2023] AATA 1616
•14 June 2023
Smith and National Disability Insurance Agency [2023] AATA 1616 (14 June 2023)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2021/5751
Re:Erica Smith
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Senior Member K. Parker
Date:14 June 2023
Place:Melbourne
The Tribunal affirms the decision under review.
................................[sgd]........................................
Senior Member K. Parker
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – review of decision relating to approval of statement of participant supports – adult participant with profound hearing impairment –Applicant already provided with hearing assistance dog free of charge by Australian Lions Hearing Dogs Inc (ALHD Inc) – Applicant requests $40,000 so she may reimburse ALHD Inc for its costs of acquiring and training hearing assistance dog – concerns held by Applicant about feeling beholden to ALHD Inc and obligated to participate in fundraising, media campaigns and to donate monies to ALHD Inc – ALHD Inc denies such obligations exist – concerns held by Applicant about local Lions club members entering her home during induction period post-placement of hearing assistance dog – meaning of “community” within s 34(1)(e) of the National Disability Insurance Scheme Act 2013 (Cth) and whether it extends to supports provided by ALHD Inc – whether “reasonable to expect” ALHD Inc to provide hearing assistance dogs to persons such as the Applicant – Tribunal found that the mandatory criterion under s 34(1)(e) not met – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme 2013 (Cth)National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
Cases
McGarrigle v National Disability Insurance Agency (2017) 252 FCR 121
National Disability Insurance Agency v Foster [2023] FCAFC 11
National Disability Insurance Agency v McGarrigle [2017] FCAFC 132Nottle and National Disability Insurance Agency [2021] AATA 1014
Secondary Materials
Explanatory Memorandum, National Disability Insurance Scheme Bill 2012 (Cth)
National Disability Insurance Agency, NDIS Operational Guidelines: Reasonable and Necessary Supports (Guidelines, 28 June 2022) <National Disability Insurance Agency, NDIS Operational Guidelines: Assistance animals including dog guides (Guidelines, 20 June 2022) <
REASONS FOR DECISION
Senior Member K. Parker
14 June 2023
The Applicant, Ms Erica Smith, has a disability arising from a profound hearing impairment and is a participant in the National Disability Insurance Scheme (NDIS). In short, this application involves an issue about whether Ms Smith should be funded an amount requested by her, that is, $40,000, so that she may reimburse the Australian Lion Hearing Dogs Inc (ALHD Inc) for the costs associated with providing her with a hearing assistance dog.
For the reasons set out below, the Tribunal has decided that this requested support is not a “reasonable and necessary support” under s 34(1) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) because it does not meet the criterion in sub-s 34(1)(e). For this reason, the Tribunal affirms the decision under review which had declined to include this requested support in Ms Smith’s statement of participant supports (SOPS) in her previous NDIS plan.
BACKGROUND
Ms Smith is a woman in her mid-60s who resides in a coastal Victorian town. She lives with her hearing assistance dog, “Bella”. Her husband lives separately in the house next door to Ms Smith’s house. Mr and Ms Smith maintain a relationship. Ms Smith said they travel together from time to time.
Ms Smith has had a long history of being assisted by hearing assistance dogs to meet her disability-related support needs. They have repeatedly been provided to her free of charge by the ALHD Inc. This includes her current hearing assistance dog, Bella, who was given to Ms Smith by the ALHD Inc in the beginning of 2022.
On 12 October 2020, Ms Smith signed an ALHD Inc Application Agreement Form, which has the following preface (emphasis added):
Australian Lions Hearing Dogs will provide me with an Australia Lions Hearing Dog at no cost on the following terms:[1]
…
[1] Refer Hearing Tender Bundle (HTB), p. 173.
On 27 October 2020, Ms Smith first made an enquiry to the National Disability Insurance Agency (NDIA) about receiving “full funding” for a hearing assistance dog, at the time her previous ALHD Inc hearing assistance dog, “Zara”, was getting older and she was contemplating retiring her.[2] The Local Area Coordinator (LAC) advised Ms Smith on 5 November 2020 that she would need to provide a report/assessment and quote from the ALHD Inc in respect of a hearing assistance dog.[3]
[2] Refer Exhibit R2, p. 10.
[3] Refer Exhibit R2, p. 9.
Zara passed away due to an unexpected illness on 13 November 2020. On 17 November 2020, Ms Smith wrote to the LAC to submit the final accounts (for expenses) referrable to Zara. In this email, Ms Smith states that she had made an application to the ALHD Inc for a new hearing assistance dog.[4]
[4] Refer Exhibit R2, p. 15.
On 23 November 2020, Ms Smith enquired of the LAC whether she might need to obtain a report from an occupational therapist regarding her need for a hearing assistance dog. The LAC advised Ms Smith that she would need a report/assessment from her medical practitioner and specifically, “one from an expert in your field of disability is the most adequate to provide information on your needs”.[5]
[5] Refer Exhibit R2, pp. 12-14.
On 14 December 2020, Mr David Horne, Chief Executive Officer of the ALHD Inc (ALHD Inc CEO), issued a letter, in response to a request by Ms Smith, providing a breakdown of the costs associated with the placement of a hearing assistance dog, including the cost of the dog and the training and support provided to the “applicant”. The breakdown states the cost of the “Purchase of Dog” is $27,000 and the “Placement & Support” of the dog is $10,625, being a total cost of $37,625.[6]
[6] Refer T-Documents/T1C/13
Mr Horne issued an “open letter” dated 7 January 2021, setting out the criteria that the ALHD Inc applies to determine whether an applicant has a genuine need for an ALHD Inc hearing assistance dog, as follows:[7]
• Severe to profound hearing loss in either one or both ears. Evidence required provided in the form of hearing tests and audiologist’s report.
• Ability to physically work and exercise the dog. Evidence provided through medical performed by GP.
• Safe environment for the dog to live and work in. Evidence provided through inspection of residence and interview of applicant.
• Ability to financially support the dog. Evidence provided through interview or addition of support on NDIS plan.
Successful applicants may have use of aids such as cochlear implants and/or hearing aids and still qualify for an Australian Lions Hearing Dog.
[7] Refer T-Documents/T1D/14.
On 19 January 2021, Ms Smith submitted a change of circumstances form to the new LAC (the previous LAC had ceased assisting Ms Smith in November 2020) “requesting funding for a replacement assistance dog”.[8] On 1 February 2021, Ms Smith followed up the new LAC about her request for an unscheduled plan review (under s 48 of the NDIS Act). Ms Smith informed the new LAC she had been assigned a new ALHD Inc hearing assistance dog and that he was due to arrive on 1 March 2021. Ms Smith advised the new LAC that the $37,000 dog would be “handed over without payment”. Ms Smith said that she will require maintenance items for this dog and asked the new LAC whether she could use her current NDIS funding until there was a new NDIS plan for her. Ms Smith told the LAC the NDIA was unclear on when she needed to apply for “full funding for a guidance dog” and that she did not want to miss the NDIA’s timeframe.[9] The new LAC advised Ms Smith that this request had been submitted, was under consideration and that the LAC expected that they would be requesting funding for the new dog as part of the unscheduled review.[10]
[8] Refer Exhibit R2, p. 18.
[9] Refer Exhibit R2, p. 20.
[10] Refer Exhibit R2, p. 19.
On 2 February 2021, the NDIA approved Ms Smith’s request for an unscheduled plan review.[11]
[11] Refer Exhibit R2, p. 21.
On 16 February 2021, Ms Sarah Chapman, occupational therapist, completed a NDIA Assistance Animal Assessment Template form and supporting documentation.[12] At the planning meeting on 22 February 2021, the reason for the review was stated as being the Assistive Technology (AT) request for an assistance animal to replace Zara. Reference was made to Ms Smith’s previous plan, which had included funding for Zara’s maintenance costs.[13]
[12] Refer T-Documents, T1E/17 – 49.
[13] Refer Exhibit R2, p. 23.
On 3 March 2021, a delegate of the Chief Executive Officer of the NDIA (NDIA CEO) approved a new SOPS for Ms Smith. This new SOPS forms part of Ms Smith’s current NDIS plan which has a notional duration of three years. It approves total funding of $14,051.19 over three years comprising $11,723.31 for core supports; and $2,327.88 for capacity building supports.[14] Ms Smith’s goals and objectives were stated as follows:[15]
Short-term goal: I would like to maintain my independence
Short-term goal: I would like to maintain my relationships and social engagement through appropriate communication strategies
Medium or long-term goal: I would like to maintain my health and wellbeing
Medium or long-term goal: I would like to participate in working and volunteering roles.
[14] Refer T-Documents, T7/94 - 95.
[15] Refer T-Documents, T7/91.
The corresponding interaction note dated 3 March 2021 between a LAC and the NDIA CEO’s delegate states that funding for a new assistance animal was not considered to be a “reasonable and necessary support” under s 34(1)(c) of the NDIS Act because it did not represent value for money. The stated reason for this was that there are other lower cost AT items available, which the delegate states had not been explored, nor evidence provided to show they would be unsuitable.[16] The parties informed the Tribunal that Ms Smith’s current SOPS includes funding of $8,167.87 over three years for the maintenance of a hearing assistance animal but did not include any funding to pay for the acquisition and training of a hearing assistance dog (that is, any funds to reimburse the ALHD Inc for the costs associated with acquiring and training a hearing assistance dog). Ms Smith sought review of this decision under s 100 of the NDIS Act.
[16] Refer Exhibit R2, pp. 25 - 26.
On 3 August 2021, a different delegate of the NDIA CEO made a decision under s 100(6) of the NDIS Act (internal review decision) refusing to include additional funding in Ms Smith’s SOPS because the delegate (that is, the “reviewer”) was not satisfied that her requests for funding for the acquisition and training of a hearing assistance animal, met the “reasonable and necessary supports” criteria under s 34(1) of the NDIS Act (in particular, sub-ss 34(1)(c) and (e) and r 5.1(d) of the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (Support Rules)).
On 18 August 2021, Ms Smith sought review of the internal review decision by the Administrative Appeals Tribunal (Tribunal).
After Zara’s passing, the ALHD Inc gave a new hearing assistance dog to Ms Smith, free of charge, whom Ms Smith named “Alfie”. She was a Labrador and Ms Smith told the Tribunal that Alfie did not turn out to be suitable. Ms Smith returned Alfie to the ALHD Inc in about September 2021. After this, Ms Smith was provided with Bella in January 2022 and Bella has remained with Ms Smith ever since. The ALHD Inc had not ever charged Ms Smith for providing her with Zara, nor Alfie, nor Bella. The ALHD Inc CEO, at the hearing, confirmed that the ALHD Inc does not ever intend to do so.
An invoice dated 1 November 2022 for $40,000, issued by the ALHD Inc, was lodged by Ms Smith with the Tribunal on 22 May 2023. The intention of Ms Smith in submitting this updated invoice was to show that the costs associated with acquiring and training a hearing assistance dog at the current time (borne by the ALHD Inc) had increased since the time this application was first lodged with the Tribunal in 2021. It was accepted by both parties that this invoice does not represent or give rise to any obligation upon Ms Smith to pay the ALHD Inc the sum of $40,000 for the ALHD Inc having provided her with a hearing assistance dog, that is, Bella. The Tribunal takes this invoice as representing nothing more than an indication of the current estimated costs to the ALHD Inc to breed, vaccinate, raise, and train accredited hearing assistance dogs to provide free of charge to hearing impaired persons at the present time.
Hearing of this application
An in-person hearing took place at the Tribunal on 1 and 2 June 2023. Ms Smith was self-represented and gave evidence, with the use of captioning services. Ms Smith called one other witness, being Mr Horne, who gave evidence by telephone. The NDIA was represented by a lawyer from HWL Ebsworth Lawyers, Ms Tegan Weir, and the relevant NDIA case manager also appeared at the hearing. The NDIA did not call any witnesses. In about February 2022, the NDIA indicated that it wished to arrange for an independent assessment of Ms Smith by a specialist in assistance animals. Ms Smith did not consent to this request and expressed her view that it would be a waste of time and money.
Both parties lodged written statements of facts, issues and contentions and a joint hearing tender bundle (HTB) before the substantive hearing. Specifically, the Tribunal notes:
(a)the Statement by Ms Smith, lodged on 19 April 2023 (Ms Smith’s Statement); and
(b)the Statement of Facts, Issues and Contentions, lodged by the NDIA on 9 May 2023 (NDIA’s SFIC).
The Tribunal also received into evidence a number of other documents as the hearing progressed and they were marked as exhibits, as well as a single document setting out further submissions by Ms Smith after the conclusion of the hearing, as had been requested by the Tribunal at the hearing on account of one of the documents in the HTB being illegible.
ISSUES
The issue in this application boils down to whether Ms Smith should be funded $40,000, so that she may reimburse the ALHD Inc for the cost associated with providing her with a hearing assistance dog (Requested Support).
The NDIA confirmed that it does not contend that the existing funding for the ongoing maintenance of Ms Smith’s current hearing assistance dog, Bella, should be removed from Ms Smith’s SOPS and is content for the expenses of the ongoing maintenance of Bella to remain funded under Ms Smith’s NDIS plan. At the hearing, Ms Smith said she did not claim any additional funding for the ongoing maintenance of Bella beyond the amount already approved under her current NDIS plan.
This application calls for the Tribunal to assess whether the Requested Support is a “reasonable and necessary support” under s 34(1) of the NDIS Act and is not otherwise an excluded support under the Support Rules.
LEGISLATIVE FRAMEWORK
The Tribunal’s jurisdiction to undertake this review arises under s 25 of the Administrative Appeals Tribunal Act 2013 (Cth) (AAT Act), operating in conjunction with s 103 of the NDIS Act.
The NDIS was established under the NDIS Act and operates in pursuit of the objectives set out in s 3 of the NDIS Act. Section 4 establishes general principles guiding actions to be taken under the NDIS Act.
Section 31 of the NDIS Act sets out several principles that apply in the development of a NDIS plan for a participant (reproduced below):
31 Principles relating to plans
The preparation, variation, reassessment and replacement of a participant’s plan, and the management of the funding for supports under a participant’s plan, should so far as reasonably practicable:
(a) be individualised; and
(b) be directed by the participant; and
(c)where relevant, consider and respect the role of family, carers and other persons who are significant in the life of the participant; and
(ca)where relevant, recognise and respect the relationship between participants and their families and carers; and
(d)strengthen and build capacity of families and carers to support participants who are children; and
(da) if the participant and the participant’s carer agree – strengthen and build the capacity of families and carers to support the participant in adult life; and
(e)consider the availability to the participant of informal support and other support services generally available to any person in the community; and
(f)support communities to respond to the individual goals and needs of participants; and
(g)be underpinned by the right of the participant to exercise control over his or her own life; and
(h)advance the inclusion and participation in the community of the participant with the aim of achieving his or her individual aspirations; and
(i) maximise the choice and independence of the participant; and
(j)facilitate tailored and flexible responses to the individual goals and needs of the participant; and
(k)provide the context for the provision of disability services to the participant and, where appropriate, coordinate the delivery of disability services where there is more than one disability service provider.
A participant’s NDIS plan is the instrument that governs what supports the participant is entitled to be provided with or funded for under the NDIS. Section 33 of the NDIS Act sets out certain matters that must be included in a participant’s NDIS plan, including the participant’s statement of goals and aspirations (s 33(1)) and the participant’s SOPS. The participant’s SOPS must be prepared with the participant and approved by the NDIA CEO (or his or her delegate), in accordance with s 33(2). The SOPS must specify how the funds provided for the participant’s supports are to be managed. A participant’s NDIS plan does not take effect until a SOPS forming part of the plan has been approved by the NDIA CEO under s 33(4) of the NDIS Act.
Section 33(5) of the NDIS Act requires that the NDIA CEO (or his or her delegate), in deciding whether to approve the SOPS under s 33(2), must:
(a) have regard to the participant’s statement of goals and aspirations; and
(b)have regard to relevant assessments conducted in relation to the participant; and
(c)be satisfied as mentioned in s 34 of the NDIS Act in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and
(d)apply the National Disability Insurance Scheme rules (if any) made for the purposes of section 35; and
(e)have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and
(f)have regard to the operation and effectiveness of any previous plans of the participant.
Section 34 of the NDIS Act provides as follows:
34 Reasonable and necessary supports
(1)For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
(b)the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
(c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and community to provide;
(f)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 delivery or support services offered:
(i) as part of a universal service obligation; or
(ii)in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
(2)The [NDIS] rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(a) to (f).
Section 33(5)(d) of the NDIS Act requires that the Supports Rules be applied in the making of a decision to approve a SOPS.
The Tribunal also notes the observations of the then Mortimer J (now Mortimer CJ) in McGarrigle v National Disability Insurance Agency (McGarrigle)[17] at paragraph [43], as follows:
The rules are legislative instruments to be made by the Minister: see s 209. Section 209, sub-paras (4) and (7) constrain the rule-making power to preserve the federal characteristics of the NDIS. The [Supports Rules] are an important element of the legislative scheme, introducing the ability to modify the operation of ss 33 and 34 by, for example, excluding certain kinds of supports from inclusion in participant plans. It is through the Rules that the executive is able to implement, 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.
[17] (2017) 252 FCR 121. This decision was appealed in National Disability Insurance Agency v McGarrigle [2017] FCAFC 132. The appeal was dismissed.
The Tribunal has considered the following Operational Guidelines published by the NDIA on its website on the date specified below:
(a)Reasonable and Necessary Supports – 28 June 2022;[18]
(b)Assistance animals including dog guides – 20 June 2022.[19]
[18] National Disability Insurance Agency, NDIS Operational Guidelines: Reasonable and Necessary Supports (Guidelines, 28 June 2022) <
[19] National Disability Insurance Agency, NDIS Operational Guidelines: Assistance animals including dog guides (Guidelines, 20 June 2022) <
The Assistance animals including dog guides guidelines state on page 14 that the NDIA cannot include funding (in a participant’s plan) for an assistance animal if the participant has already bought it before they joined the NDIS or before their plan was approved. The Tribunal considers that this part of the NDIA’s guidance is inconsistent with the provisions of the NDIS Act and the Support Rules. The NDIS Act and the Support Rules establish a specific framework (and have mandated a set of “reasonable and necessary supports” criteria) by which an assessment is to be made about whether a participant should be funded for any support, including a support in the form of the costs to acquire and train a hearing assistance dog. The NDIS Act and the Support Rules do not appear to require the decision-maker to take into account the access the participant already has to a particular support at a particular point in time and, specifically, on the date of approval of the original SOPS under review. The only exception to this is r 5.1(c) of the Support Rules which excludes funding or the provision of a support if it would duplicate other supports delivered under alternative funding through the NDIS. This does not apply.
If the NDIA operational guidance as referred to above is implemented, it would mean that an applicant’s claim for an assistance animal may be defeated by the mere passage of time as a review application makes its way through the NDIA’s internal review process, and subsequent Tribunal process, from lodgement to final decision, because the applicant has, during that period, decided to make other arrangements to acquire the requested support. If this takes place, the Tribunal is not convinced that there is any provision in the NDIS Act or Support Rules prohibiting the applicant from continuing on with their original request for funding for the cost of this support, and then, when is it subsequently approved under the participant’s NDIS plan, the applicant could acquit that amount to whomever has paid for the support in the interim. The Tribunal will not apply this policy guidance (as referred to in the first sentence of paragraph [35] above) as it considers it to be inconsistent with the broader framework provided under the NDIS Act for the assessment of whether a support is a “reasonable and necessary support” under s 34(1) and should be included in a statement of participant’s supports.
CONSIDERATION
Section 33(5) of the NDIS Act requires that the NDIA CEO (or delegate), in deciding whether to approve the SOPS under s 33(2), have regard to a number of factors including the participant’s statement of goals and aspirations, the relevant assessments conducted in relation to the participant, and to be satisfied that the supports to be included in the SOPS are “reasonable and necessary supports” within the meaning of s 34(1) of the NDIS Act.
Section 34(1) of the NDIS Act mandates that six separate criteria must be met before a support is considered to be a “reasonable and necessary support”. Section 34(2) provides that the NDIS rules may prescribe methods or criteria to be applied or matters to which the decision-maker is to have regard, in deciding whether they are satisfied that the criteria under s 34(1) have been met in respect of a requested support.
Section 34(1)(e) - the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks, and community to provide
The Tribunal will consider first whether the criterion under s 34(1)(e) of the NDIS Act has been met in respect of the Requested Support. Section 34(1)(e) of the NDIS Act requires that “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”.
The NDIA contends that it is reasonable for the funding of a hearing assistance dog to be provided to Ms Smith by the community organisation, ALHD Inc. Ms Smith contends that this criteria under s 34(1)(e) was not intended to apply to the current circumstances, that is, where a large organisation such as the ALHD Inc is providing supports to hearing impaired persons, but rather it was intended to apply only to smaller local community groups.
As addressed with the parties at the hearing, the following two questions arise in this application about the interpretation of s 34(1)(e) of the NDIS Act and its application to Ms Smith’s circumstances:
(a)what is meant by the term “community”, and would this extend to support in the form of a hearing assistance dog as offered and provided to Ms Smith by the ALHD Inc; and
(b)if so, whether it is “reasonable to expect” the ALHD Inc to provide a hearing assistance dog to a person with hearing impairments, such as Ms Smith.
Meaning of “community”
The phrase “community” as appearing s 34(1)(e) of the NDIS Act is not defined either in the NDIS Act or in the Support Rules. As mentioned above, Ms Smith contends that she does not think the reference to “community” would extend to the ALHD Inc and, instead, that it was intended to mean something much smaller, such as a small group within the local community. Ms Smith referred to, as an example, a local arts class and she accepted that she should not receive NDIS funding to attend this type of class, because she may attend a local community arts class. Ms Smith contends that “community”, as it is used in s 34(1)(e), was not intended to apply to offerings by larger organisations such as the ALHD Inc.
The NDIA contends that the term “community” is broad enough to encompass the ALHD Inc. The NDIA highlights that this association is not-for-profit and the supports it offers are funded by the community, for the community (that is, for the benefit of members of the community with hearing impairments).
The Tribunal must give the term, “community”, appearing in s 34(1)(e) of the NDIS Act, its ordinary and natural meaning, because it is not defined elsewhere in this enactment, or the Support Rules. The Tribunal has considered the Macquarie Online Dictionary meaning of the term “community” which is extracted below:[20]
[20] Macquarie Dictionary (online on 1 June 2023) “community”.
Community
Noun (plural communities)
1. all the people of a specific locality or country: the new transport service is for the benefit of the whole community.
2. the community, the public.
3. a particular locality, considered together with its inhabitants: a small rural community.
4. a group of people within a society with a shared ethnic or cultural background, especially within a larger society: the Aboriginal community; Melbourne’s Greek community.
5. a group of people with a shared profession, etc.: the scientific community.
6. a group of people living together and practising common ownership.
7. Ecclesiastical a group of men or women leading a common life according to rule.
8. a group of organisms, both plant and animal, living together in an ecologically related fashion in a definite region …
9. joint possession, enjoyment, liability, etc.: community of property.
10. similar character; agreement; identity; community of interests.
-adjective 11. (of a radio or television station) owner and operated by the community which uses it.
-phrase 12. the community at large, the general populace.
…
The dictionary definition set out above, conveys that the term “community” is broad and wide-ranging. Ms Smith described the term in this way when she made submissions at the substantive hearing. It may encompass the general public and extend to groups of differing sizes, locations, and constitution. Neither the NDIS Act, nor the Support Rules, qualify or limit its reference to the term “community” as appearing in s 34(1)(e) of the NDIS Act, when it was open to Parliament to do so. For instance, the Tribunal considers that if Parliament had intended to refer to only small local community offerings, as Ms Smith contends, it could have confined or qualified this term as appearing in s 34(1)(e) by additional qualifying or limiting text, when the NDIS Act was enacted. Parliament did not do so.
The NDIA refers to “community” on page 2 of the Reasonable and Necessary Supports Guidelines in a broad way as follows:
What supports can we fund?
NDIS supports should complement, not replace, other supports available to you. That’s why we consider:
• the things you’re able to do for yourself
•support you have from others in your network, including family members, relatives, friends, local community services and mainstream government services.
One of our aims is to help maximise your independence by working with the local mainstream government and community services that help you live an ordinary life. We all do best when we’re connected to our communities.
However, the Tribunal notes that the NDIA refers again to the term “community” on page 8 of the Reasonable and Necessary Supports Guidelines in the context of s 34(1)(e) (see below), seeking to qualify it by stating that it is a reference to supports “open to everyone in the community” and also by the reference to “local community”:
Community services offer a wide range of supports that may help with your disability support needs. Community supports are things open to everyone in the community, like sporting clubs, community colleges, activity groups, libraries or community gardens. They are often a great way to get involved in your local community, meet new people and learn new skills.
The Tribunal will not apply this definition of “community” given by the NDIA in its Reasonable and Necessary Supports Guidelines as set out in the above paragraph, as the Tribunal considers it to be unduly narrow and qualified in a way that is not supported by (or inconsistent with) the legislative provisions in the NDIS Act and Support Rules. The Tribunal considers that “community” in the context of s 34(1)(e) may include a reference to supports open to everyone in the community but equally also open to only certain subgroups of persons in the community, such as persons with hearing impairments.
The Tribunal notes the following statements referred to by the NDIA as appearing in the Explanatory Memorandum, National Disability Insurance Scheme Bill 2012 (Cth) (emphasis added):
At page 1:
…the Commonwealth and all state and territory governments have agreed on the need for major reform in the form of a National Disability Insurance Scheme, which:
·Will take an insurance approach that shares the cost of disability services and supports across the community;
·…
At page 1 of the Statement of Compatibility with Human Rights:
…
The NDIS will work in conjunction with existing mainstream and specialist disability services to provide support for people with disability throughout their life. Consequently, it is not designed to meet all the needs of all people with disabilities. Moreover, support will be provided at different levels, depending on assessed need.
The NDIA’s SFIC makes reference to the decision in McGarrigle, and contends further as follows (emphasis added):
37. In deciding whether funding or provision of supports takes into account what is reasonable to expect families, carers, informal networks and the community to provide, the Tribunal must have regard to the matters in r 3.4. The Court in McGarrigle observed at [97] that: (emphasis added)
I do not consider that r 3.4 is concerned with the funding of the support: rather, it is concerned with how the participant can access the practical assistance required, thus requiring the decision-maker to consider whether that access is available through other sources rather than funding it by the Agency pursuant to the participant plan. As I have noted elsewhere in these reasons, this is an important distinction because it makes the task of the decision quite different. The decision-maker must examine the realistic and reasonable capacity of others to provide the support - feasibility, continuity, suitability - and must decide, in a rational and reasonable way, based on probative material, whether or not there is, in fact, capacity for others to provide the support to the participant that is needed.
38. As set out above, the Applicant has had the benefit of an assistance animal from ALHD, free of charge, since 2011. There is evidence before the Tribunal that there is, in fact, capacity for others to provide the support to the Applicant that is needed. This position is consistent with the provisions in the NDIS Act and in the [Operational Guidelines] extracted above that the provision and funding of disability care and support for Australians does not solely rest with the NDIA. The Respondent contends that the Tribunal ought to be satisfied that it is reasonable for the assistance animal to be provided and funded by the ALHD and as such, s34(1)(e) is not met.
To give this term “community” its ordinary and natural meaning, the Tribunal considers that it must undertake the assessment as required by s 34(1)(e) by considering potential support offerings by the community, irrespective of the size, location, or constituency of the community group or organisation that is able to provide disability-related supports to a NDIS participant and/or other persons with disabilities. The ALHD Inc’s legal status is that of an incorporated association. Almost all funding provided to run this association and to offer hearing assistance dogs as a support to persons with hearing impairments, constitutes donations or bequests from members of the public who willingly and voluntarily support the objectives of this association.
For these reasons, the Tribunal finds that the hearing assistance dog support offered by the ALHD Inc is a support being provided by the “community” within the meaning of s 34(1)(e) of the NDIS Act.
“Reasonable to expect”
The next question that arises is whether it is reasonable to expect that the Requested Support is to be provided by the community, specifically in this instance, ALHD Inc, to persons like Ms Smith who have a hearing impairment.
Rule 3.4 sets out matters which must be considered when a decision is made about whether the criterion under s 3.4(1)(e) of the NDIS Act is met. It provides as follows (as relevant to an adult NDIS participant):
…
(b) for other participants:
(i) the extent of any risks to the wellbeing of the participant arising from the participant’s reliance on the support of family members, carers, informal networks and the community; and
(ii)the suitability of family members, carers, informal networks and the community to provide the supports that the participant requires, including such factors as:
(A) the age and capacity of the participant’s family members and carers, including the extent to which family and community supports are available to sustain them in their caring role; and
(B)the intensity and type of support that is required and whether it is age and gender appropriate for a particular family member or carer to be providing that care; and
(C)the extent of any risks to the long term wellbeing of any of the family members or carers (for example, a child should not be expected to provide care for their parents, siblings or other relatives or be required to limit their educational opportunities); and
(iii)the extent to which informal supports contribute to or reduce a participant’s level of independence and other outcomes;
(c) for all participants—the desirability of supporting and developing the potential contributions of informal supports and networks within their communities.
Any risks to Ms Smith’s wellbeing
The first matter to be considered by the Tribunal under r 3.4(b)(i) of the Support Rules is the extent of any risks to Ms Smith’s wellbeing arising from her reliance on the support provided by the ALHD Inc, being the provision of a hearing assistance dog.
Ms Smith’s evidence referred to the pros and cons in respect of being provided with hearing assistance dogs by the ALHD Inc, as outlined below.
In terms of the pros, Ms Smith spoke highly of the professionalism of the ALHD Inc, so much so that in Ms Smith’s Statement, she claimed that she could not obtain a hearing assistance dog from any other reputable source, so that she is dependent upon the ALHD Inc.
Ms Smith spoke of the great benefits that her first and third ALHD Inc hearing assistance dogs (that is, Zara and Bella) have provided to her. She says they have assisted her to feel safe and secure in her home and when she is out in the community. These benefits arise because the hearing assistance dog is able to alert Ms Smith to certain auditory cues, the presence of other people and/or potential dangers. There was an issue with the suitability of her second hearing assistance dog provided by the ALHD Inc, Alfie, and he was returned to the organisation at an early stage, but according to Ms Smith the issue was related to Alfie’s breed, that is, being a Labrador, she is large in size and Ms Smith found it hard to manage her, physically. She described Alfie as not being a suitable dog for her.
The Tribunal notes that the ALHD Inc received Alfie back (who has since been matched with another owner) and has since provided Ms Smith with another hearing assistance dog, that is, Bella.
Ms Smith spoke highly of the social opportunity that arose as a result of the process of Ms Smith first receiving a hearing assistance dog, in that the ALHD Inc had invited a group of about 20 other persons with hearing impairments about to receive their hearing assistance dogs, to meet together in Adelaide for a joint training, facilitated by the ALHD Inc. She referred to the group members having meals together during this time and they had established a Facebook group to remain in contact. Ms Smith described this experience in most favourable terms.
Ms Smith’s main concerns about the support of a hearing assistance animal support being offered by the ALHD Inc appear to be two-fold.
Ms Smith’s first concern is about the initial settling process in the three months post-placement of the dog. Ms Smith was dissatisfied about members of the local Lions club visiting her home to continue on the initial training under directions from the ALHD Inc dog trainer, and to make various assessments. Ms Smith considered this to be an infringement on her privacy and dignity. At the hearing, Ms Smith said that without asking her, one member had opened up and looked in her wardrobe, and in her kitchen cupboards.
In Ms Smith’s Statement, she states that as part of the funding for a hearing assistance dog, the local Lions club is invited to “sponsor” the dog. She states that the local Lions club had sponsored her first two hearing assistance dogs: Zara and Alfie. She said that if a local Lions club sponsored a dog, then the club has a group of three people who will come through the recipient’s home, about three times per week for the first three months, to assist with the in-home training of the hearing assistance dog. Ms Smith stated that:
Even though this is a very successful and cost effective way to establish home training and behaviour, I have no say to who these people may be. Although the times and days are flexible, I also have to fit in with their availability. I am completely at their mercy to if and when they can come and assist. At times these visits can be an hour or more, as the Lions members invariably have more time to talk than to quickly practice the 8 sounds that the dog performs. At times I have had Lions members, both male and female, wander through my house, opening cupboards, going into my ensuite or bathroom or bedroom uninvited to do so and when there is no need. As I am reliant on these people to help my ALHD settle in and pass the next Public access test PAT and sound test, there is a very unequal relationship which I found one or two people took advantage of, without my own home. I felt very vulnerable inviting these unknown people into my whole home.
I very much felt that they were the “good people”, who were, through the goodness of their heart helping ‘Poor me’ the person with the disability. I resent this. These volunteers, unlike a support person I would “employ” through a NDIS plan, and therefore would have a very specific working relationship with, I have no right to how they work with me. Most of these volunteers have not had training on disabilities, hearing loss or training dogs, often are quiet [sic] rude or condescending.
At the hearing, Ms Smith was asked about the placement of Bella and the process of settling her in post-placement. Ms Smith gave evidence that, due to Covid-19, the session with the ALHD Inc dog trainer in the first week took place on Zoom and that because Bella was not sponsored by the local Lions club, no local Lions members attended her home on this occasion.
Ms Smith’s second concern arises from Ms Smith stating that she feels “beholden” to the ALHD Inc as a result of the association providing her with a hearing assistance dog, free of any charge. Ms Smith told the Tribunal at the commencement of the substantive hearing, that being provided with a hearing assistance dog by the ALHD Inc “goes against practice guidance” in that it takes away from her “privacy” and “dignity”, because she is “a recipient of charity”.
In Ms Smith’s Statement, she explained this feeling of being beholden to the ALHD Inc as follows:
Once the three-month in-home training is complete, the ALHD trainer returns to complete the public access test and an-in house [sic] sound test. During this visit or the delivery visit, usually designed to fit in with a local [L]ions club meeting, the trainer and myself are invited to the Lions club meeting to be ‘be displayed’ and for me to utter the correct thanks. Often the local press is also invited to that meeting or to my home or in the community so my hearing dog and I can be showed off again [to] help to raise awareness and funds.
In this publicity as well as with the Lions club members that come into my house I usually have to tell them my story, again and again of why I am deaf, why I need a hearing dog, how being deaf has affected me and how their generosity has helped me so much.
This is necessary, I and other ALHD owners do agree to be part of this BECAUSE the promotion of the ALHD centre to local [L]ions clubs and the general public is needed so the ALHD can fund raise to pay for my/our ALH dog and all the other 30 that were delivered through out Australian [sic] last year. Due to the severe lack of funding at the ALHD centre other means of in-house training cannot be used.
At the hearing, Ms Smith told the Tribunal she should not be “forced” to be the recipient of charity (that is, the provision of hearing assistance dogs by the ALHD Inc). She said that it should be the obligation of the NDIS to pay for her supports. She said she felt beholden to the ALHD Inc and it was not fair that she should feel that way. She explained that when she needed to return Alfie, she very much felt like she had failed and she was worried that they would “strike her off the books”. She said that they were required to raise more money because of her. Ms Smith said that she did not like the “localness” of it and that it made her feel obliged to a group of people in the town where she lives. She said they were very nice and good people but she did not like that it was “unequal”. Ms Smith said she did not think that they saw her as an “equal” because they were required to fundraise for her (that is, for the costs of providing her with the hearing assistance dog). Ms Smith said she had “no choice of service” and that she did not have control over saying that the local Lions club members could not come into her home, walk into her bedroom and to make comments.
Ms Smith told the Tribunal at the hearing that Bella was not sponsored by her local Lions club and, instead, she was sponsored by a central New South Wales Lions club. She says there was no Lions club welcome, local press, or extra fundraising in respect of Bella.[21] The local Lions club members were not involved in the post-placement visits to her home after the placement of Bella. Ms Smith said that some of them do not talk to her anymore.
[21] Refer Ms Smith’s Statement at HTB, p. 35.
Ms Smith states that, after Zara died, she had donated $5,000 to the ALHD Inc and has since made a $20 monthly donations to the ALHD Inc. Ms Smith referred to the settlement of $5,000 received from a discrimination complaint against a caravan park, which she said was paid to the ALHD Inc. She referred also to other ALHD Inc hearing assistance dog owners who have made “larger donations and some have large bequests for the Centre in their wills”. Ms Smith states as follows:[22]
Other people who received their assistance dogs through their NDIS plans don’t donate back to their Assistance dog provider. There is no need because the dog has been funded and paid for.
Now this sounds if I am fairly bitter and angry about this process, No but its not fair. It is what at the moment, it has to be. The value of my ALHD to me and to all the other recipients that I know, is worth the unfortunate nature of how the ALHD are inadequately funded under the NDIS or any other funding source to provide a fantastic service and professional support that has been proven over 40 years.
[22] Refer Ms Smith’s Statement at HTB, p. 36.
The NDIA acknowledged the concerns raised by Ms Smith. However, the NDIA contends that Ms Smith had chosen to “go through a community organisation who is a charity and employees [sic] a fundraising model as opposed to a private provider to obtain an assistance animal”[23] and that she had not requested that an assistance animal be provided through a different provider, despite her dignity-related and privacy-related concerns.
[23] NDIA’s SFIC at [36], p. 14.
The evidence given by Mr Horne at the hearing is relevant to this issue. He made it clear in his evidence that a participant within the ALHD Inc program who receives a hearing assistance animal by their association free of charge, is under no obligation whatsoever to participate in any media campaign, fundraising activities or to donate to the association. When Mr Horne answered a question by the Tribunal, he confirmed that a recipient of an ALHD Inc hearing assistance dog, could, if they elected to, receive the dog, and then have nothing further to do with the ALHD Inc or any of the members of the sponsoring Lions club. The Tribunal notes that Ms Smith refers herself to having been issued with “invitations” (that is, being very different from any sort of demand) to attend the Lions club when she first received the dog. Further, she refers to having been “invited” to be involved in media or fundraising activities and that she had “agreed” to the local members of the sponsoring Lions club to visit her home post-placement of Zara and Alfie. Importantly, Ms Smith was not under any compulsion to do those things. If those follow-up activities were affecting Ms Smith’s wellbeing, when she received Zara, Alfie, or Bella, it was open to her to elect not to participate in any of those activities, thereby eliminating any negative impacts on her wellbeing.
The Tribunal understands the point Ms Smith is seeking to make about her feeling beholden to the ALHD Inc and the sponsoring local Lions club and its members, including to give the association monetary donations for providing her with the successive hearing assistance dogs. However, the Tribunal considers that this arises from Ms Smith’s personal stance about who is the appropriate body to provide her with support in the form of a hearing assistance dog and specifically, her view (or preference) that they should be funded under NDIS, which the Tribunal notes is ultimately funded by Australian taxpayers, rather than by community-funded programs such as those run by ALHD Inc. The Tribunal considers that support in both instances is being provided by the funding of others and not met by the personal funds of the individual participant. Objectively, the Tribunal does not consider there to be such a difference as Ms Smith’s perceives in relation to who is to fund the provision of the hearing assistance dog to her. Rather, the Tribunal considers it is important that Ms Smith has continuing access to a hearing assistance dog given her disability-related support needs. Even if the Tribunal were to accept that Ms Smith was made to feel beholden to the ALHD Inc for providing her with a hearing assistance dog (which it does not), the Tribunal considers that at all times, Ms Smith was at liberty to abstain from donating any monies to this association and that Ms Smith only did so of her own volition.
The primary purpose of the ALHD Inc is to provide, at no cost, hearing assistance dogs to deaf and hearing-impaired Australians. This much is evident from the current Constitution of the ALHD Inc (approved at the ALHD Inc Annual General Meeting on 6 May 2021), which sets out its objectives as follows:
3 Objects of the Association
The objects of the Association are to:
Provide at no cost, hearing assistance dogs to assist the deaf and hard of hearing of Australia.
Provide on a not-for-profit basis other hearing aids to assist the deaf and hard of hearing of Australia.
Train dogs in the assistance of the deaf and hard of hearing.
Do such other things incidental to the above Objects which the Association or the MD Council may consider desirable for its purposes.
At the hearing, Mr Horne gave evidence that the ALHD Inc will provide a hearing assistance dog to a person with a hearing impairment, such as Ms Smith, free of charge and that it does not matter whether they are a NDIS participant or not. He said the training of the dog and the services to be given to the person will not alter, depending upon whether there is NDIS funding available to pay for the costs of acquiring and training the dog. He said the ALHD Inc’s core business is to breed, raise and train the dogs and to provide them free of charge. In fact, Mr Horne explained that it is a condition of the ALHD Inc’s accreditation with the Association of Dogs International (ADI) that their association is not allowed to ask the client to pay for the provision of a hearing assistance dog. Mr Horne explained that it is important for a hearing assistance dog to be ADI-accredited so that the dog is permitted to accompany the hearing-impaired person on flights. Mr Horne said that both Virgin Australia and Qantas will only accept ADI-accredited assistance dogs on their flights. Mr Horne said that this condition imposed by the ADI means that ALHD Inc must work as a charity or on a not-for-profit basis.
Despite those matters, Ms Smith said she considers it to be unfair that hearing assistance dogs need to be funded by the ALHD Inc, and not the NDIS, when assistance dogs for people with other types of impairments (such as vision impairment) are able to receive funding from the NDIS for their assistance animals. Ms Smith lodged with the Tribunal a set of statistics which had been obtained through a Freedom of Information process showing that quite a number of participants, who are vision impaired, had received funding for an assistance dog and that by comparison, Ms Smith said that only one participant, Mr Nottle, has received funding for a hearing assistance animal under his NDIS plan.[24] The Tribunal does not consider such comparisons assist the Tribunal to make the decision it must, about whether the mandatory criteria under s 34(1) of the NDIS Act have been met in respect of the Request Support.
[24] Nottle and National Disability Insurance Agency [2021] AATA 1014.
The matters referred to above relate to the way Ms Smith feels about receiving a hearing assistance dog from the ALHD Inc free of charge, instead of being funded under her NDIS plan for acquiring and the initial training of the dog. However, the Tribunal accepts the evidence of the very positive effect the provision of Bella to Ms Smith has had on Ms Smith’s psychological well-being. This arose from Ms Smith’s own evidence at the start of the hearing about how her psychological wellbeing had deteriorated during the period she was without a hearing assistance dog and importantly, how it vastly improved once Bella was placed with her (after Zara’s passing and the mismatch with Alfie).
The Tribunal acknowledges that Ms Smith does not feel good about being the recipient of what she perceives to be charity (being the provision of a free hearing assistance dog by ALHD Inc), and her personal opinion or preference that all of her supports should be funded under the NDIS. However, the NDIS Act and the Support Rules specifically make provisions for the responsibility for disability-related supports, in some instances, being shared with others, such as informal networks and the community by the enactment of s 34(1)(e) of the NDIS Act.
On balance, the Tribunal considers that the provision of Bella to Ms Smith by the ALHD Inc (even though the dog was provided to her free of charge) has had an overwhelming positive impact upon Ms Smith’s wellbeing. Accordingly, the Tribunal is not satisfied that there is any risk to Ms Smith’s wellbeing, by the provision of Bella to Ms Smith by the ALHD Inc. Those considerations weigh in favour of a finding that it is reasonable to expect ALHD Inc to provide a hearing assistance dog to persons with hearing impairments, such as Ms Smith.
The suitability of the community (through the ALHD Inc) to provide the hearing assistance dog to Ms Smith
This consideration picks up on the matters referred to above arising from the first and second concerns held by Ms Smith (see paragraphs [61] to [73] above). For the reasons set out above, while the Tribunal acknowledges that Ms Smith does not feel good about being the recipient of charity from the ALHD Inc and that, subjectively, she feels beholden to this association, when one considers the overall impact of the provision of a hearing assistance dog to Ms Smith free of charge by the ALHD Inc, the Tribunal has found that this has had an overwhelmingly positive impact upon the wellbeing of Ms Smith by the improving her independence, allowing her to feel safe and secure at home and in the community and thereby increasing her capacity to engage in social and economic activities.
There was no issue arising as to whether Ms Smith was eligible to be provided a hearing assistance animal free of charge by the ALHD Inc. Ms Smith has been assessed as eligible and provided with a hearing assistance animal on three separate occasions now.
The suitability of the ALHD Inc providing this type of support to Ms Smith is consistent with the fact that one of the primary objectives of this incorporated association is to “[p]rovide at no cost, hearing assistance dogs to assist the deaf and hard of hearing of Australia”, by reference to its current Constitution. It receives a substantial amount of operating income, as shown it is 2022 Annual Report, to work toward achieving the association’s objectives (that is, approximately $5.89 million in 2021 and $2.34 million in 2022). After meeting its expenses, it had a surplus of funds in the order of $907,791 in 2022. The ALHD Inc reports that it delivered 32 hearing assistance dogs in 2022 (and the first medical alert assistance dog). The 2022 Annual Report states that 32 puppies have entered the ALHD Inc training program and 29 hearing assistance dogs are “in training”. At the hearing, Mr Horne gave evidence that there are six full-time dog trainers employed in the program at present. The 2022 Annual Report, ALHD Inc states there it has over 200 active volunteers. The ALHD Inc has been operating and delivering hearing assistance dogs to persons with hearing impairments for the last 40 or so years, free of charge. The Tribunal is satisfied that the ALHD Inc has the capacity to continue its operations into the future and to continue to meet its stated objective of providing hearing assistance dogs to persons with hearing impairments, free of charge to the recipient.
There was no suggestion that there are problems with the quality of the service being delivered by the ALHD Inc, except for Ms Smith’s concerns about the local Lions club members entering her home during the initial placement stage and opening her wardrobe and kitchen cupboards, which she considered to be an invasion of her privacy. However, the Tribunal notes the following:
(a)it would seem to the Tribunal that this process of the visits from the local Lions club members is optional. When Bella was placed with Ms Smith, the sponsorship for the acquisition and training of Bella was not provided by her local Lions club and, instead, was provided by a different Lions club based in New South Wales. This meant there were no visits by the local Lions club members to assist the ALHD Inc Adelaide-based dog trainer with the initial three-month period following the placement of Bella with Ms Smith. And yet, in the absence of any such involvement by local Lions club members, Bella has settled in well with Ms Smith and, by all reports, is an effective hearing assistance dog able to effectively meet her disability-related needs; and
(b)the ALHD Inc has a formal complaints and feedback process, which is publicly available on its website. Ms Smith said she was unaware of its existence. The Tribunal notes that Ms Smith is computer literate. There was no evidence of communications between Ms Smith and the ALHD Inc expressing her concerns about the manner in which the local Lions club members had conducted their visits to her home following the placement of Zara and Alfie. While the Tribunal acknowledges that these are concerns are genuinely held by Ms Smith, they were not sufficiently grave enough to prompt her to find out how to make a complaint about them to ALHD Inc, which, in turn, would have enabled the ALHD Inc to address them.
Based on the matters set out above, the Tribunal does not consider the stated concerns held by Ms Smith about the manner in which the visits by the local Lions club members were conducted, constitute a reason as to why the Tribunal should be doubtful about the suitability of the ALHD Inc to provide hearing assistance dogs to persons such as Ms Smith who has a profound hearing impairment. Mr Horne told the Tribunal at the hearing that the ALHD Inc had enjoyed a 90% success rate in the placement of hearing assistance dogs with participants in its program. Ms Smith’s own evidence was that the ALHD Inc’s program was delivered in a professional manner (putting aside the visits from the local Lions club members), and her evidence conveyed a sentiment that this was the only realistic option available to her to acquire a hearing assistance dog.
Given all of these matters, the Tribunal concludes that it is suitable for the community (through the program offered by the ALHD Inc) to have provided the hearing assistance dog, Bella, to Ms Smith and this weighs in favour of a finding that it is reasonable to expect that the community (through the ALHD Inc) will provide this support of a hearing assistance dog to Ms Smith.
The extent to which provision of the hearing assistance dog to Ms Smith by the ALHD Inc contributes to or reduces her level of independence and other outcomes
The Tribunal is satisfied, based on Ms Smith’s evidence, which was not substantively challenged by the NDIA at the hearing, that the provision of Bella by the ALHD Inc to her has increased her level of independence by allowing her to feel safe and secure while at home and when accessing the community, by her training to alert to Ms Smith to certain sounds and events in her environment. In terms of “other outcomes”, the Tribunal is satisfied that Bella also provides significant comfort and companionship to Ms Smith as an ordinary pet dog would do.
The Tribunal acknowledges that Ms Smith considers that her independence has been reduced by receiving Bella free of charge from the ALHD Inc for the reasons referred to above in paragraphs [61] to [73]. Ms Smith would prefer to receive the funding of $40,000 in her NDIS plan to feel “equal” with the ALHD Inc by being the person who is providing funding to this association to enable it to operate and to provide hearing assistance dogs to persons like her with hearing impairments, rather than Ms Smith being a recipient of charity (that is, the provision of Bella) from the ALHD Inc. The Tribunal considers that the focus by Ms Smith here is about who will have control over the manner in which the ALHD Inc’s operations are conducted, rather than focussing on the output of the association in meeting is constitutional objective of providing hearing assistance dogs to persons with hearing impairments free of charge. The Tribunal is not convinced that Ms Smith’s perspective appropriately focusses on her being supported in a way that compensates for her disability arising from her profound hearing impairment by assisting her to pursue her goals and objectives and to undertake activities so as to facilitate her social and economic participation. The provision of an ADI-accredited assistance dog to Ms Smith, regardless of who pays for the cost of the dog to be bred, raised, vaccinated, trained, and accredited, is the “support” which goes meet these objectives.
Overall, the Tribunal considers that the provision of Bella to Ms Smith by the ALHD Inc free of charge has significantly increased her independence and this weighs in favour of a finding that it is reasonable to expect that the community (through the ALHD Inc) will provide this support of a hearing assistance dog to Ms Smith.
The desirability of supporting and developing the potential contributions of informal supports and networks within Ms Smith’s communities
When the Tribunal is assessing whether it is reasonable to expect the ALHD Inc to provide a hearing assistance dog to an eligible applicant with a hearing impairment, r 3.4(c) of the Support Rules, read together with the preface to r 3.4, calls for the Tribunal to consider the desirability of supporting and developing the potential contributions of informal supports (and networks) within Ms Smith’s communities, such as the provision of hearing assistance dogs by ALHD Inc.
The Tribunal considers that it is desirable to support and develop this type of support being delivered by the ALHD Inc for the same reasons it found it is satisfied as to its suitability to provide such supports to persons with hearing impairments and, in this case, Ms Smith, and to do so free of charge. The consideration of r 3.4(c) raises the question of whether the ALHD Inc’s “potential contributions” (of providing hearing assistance dogs to persons with hearing impairments) might be “supported”, and “developed”, by reason of the ALHD Inc being provided with funding by the NDIS participants, approved and sourced under their NDIS plans, because it would result in the ALHD Inc being able apply (or redirect) its donated operating income elsewhere or to expand its operations.
At the hearing, the Tribunal asked Mr Horne about the ALHD Inc’s status as a registered NDIS-service provider. He confirmed that while the ALHD Inc was at one time registered as a NDIS-service provider, the association has let its registration lapse. Mr Horne also explained that his association was not able to charge any fees for the placement of a hearing assistance dog as this would constitute a breach of the condition the association is under in order to remain a member of the ADI. For this reason, even if NDIS funding was approved in a plan for the purpose of paying for the costs associated with the ALHD Inc acquiring and training the dog, it would seem from Mr Horne’s evidence that it is not be possible for the ALHD Inc to be paid (by anyone) for these costs as the ALHD Inc is under a condition to provide the dog as a support free of charge.
Further, Mr Horne gave evidence at the hearing that the ALHD Inc has negligible interest in pursuing NDIS funding, seemingly due to its lack of success in having tried previously. He explained there had only been one case where a participant had received NDIS funding for a hearing assistance dog. He confirmed that this was Mr Nottle.
Mr Horne was asked whether it would make any difference to the ALHD Inc whether an eligible applicant is a NDIS participant when applying for a ALHD Inc hearing assistance dog. He said it would make no difference and, if eligible, they would be given such a dog by the ALHD Inc free of charge. Mr Horne was asked whether it would change the ALHD Inc’s training processes, if there was NDIS funding available to pay for the costs of the ALHD Inc hearing assistance dog. Mr Horne said that if NDIS funding was available then it might mean that the dog trainers could travel from the training centre based in Adelaide more frequently to do the post-placement training with the eligible applicant. The Tribunal notes that the placement of Zara and Bella has been successful even without the dog trainer being able to undertake the additional travel to conduct the follow-up training in person and that the reason the placement of Alfie was unsuccessful related to the size of his body rather than anything to do with his training. More broadly, Mr Horne gave evidence that the ALHD Inc has experienced a 90% success rate with the placement of their dogs which is an impressive success rate.
There also remains a structural issue with respect to Mr Horne’s evidence that the association cannot charge for the dog if they wish to retain ADI membership so the dogs may become ADI-accredited. Mr Horne indicated that the association remains committed to ensuring its dogs are ADI-accredited so that, in the interests of their owners, they are permitted to fly with the eligible applicants on Qantas and Virgin Australia flights. The Tribunal considers that this structural limitation is unlikely to change into the near future.
In conclusion, the Tribunal considers that the ALHD Inc provides an incredibly valuable community resource, and that it has done so for over 40 years, to eligible persons with hearing impairments who have made a choice to avail themselves of an ALHD Inc hearing assistance dog free of charge. The ALHD Inc are committed to providing ADI-accredited hearing assistance dogs so they may accompany and be of assistance to their owners on Qantas and Virgin Australia flights. For the last 40 years, the ALHD Inc has been able to sustain its operations of breeding, raising, vaccinating, training, and obtaining ADI-accreditation for hearing assistance dogs (and now, medical alert assistance dogs), by attracting sizable donations from members of the community who have decided for their own reasons to donate to the ALHD Inc for the purpose of providing this type of support to eligible applicants free of charge. The Tribunal considers that it is desirable to support and develop the potential contributions of informal supports and networks within their communities such as those offered by the ALHD Inc. As an aside, the Tribunal considers that the NDIS funding which has been approved in Ms Smith’s current SOPS (and which will remain) for the ongoing maintenance costs for Bella is a support that serves to support and develop the ongoing contribution that the ALHD Inc makes to persons with hearing impairments. However, the Tribunal is not satisfied that the provision of NDIS funding to the ALHD Inc for the initial costs of acquisition and training of the hearing assistance dogs, is likely to make any significant difference to the manner in which this association operates and its program to deliver ADI-accredited hearing assistance dogs to eligible persons with hearing impairments free of charge, as it has done with a 90% success rate for over 40 years without the benefit of regular NDIS funding.
The Tribunal concludes that the consideration under r 3.4(c) of the Support Rules does not weigh against finding in Ms Smith’s case that it is reasonable to expect that the community (through the ALHD Inc) to provide hearing assistance animals to persons with hearing impairments such as Ms Smith.
CONCLUSION
The Tribunal acknowledges Ms Smith’s expressed preferences that the provision of her hearing assistance dogs should be funded under her NDIS plan and for the ALHD Inc to have their costs of providing her with such a support covered by funding under her NDIS plan. Ms Smith has indicated that she thinks this will address some of the concerns she has, as have been discussed above at paragraphs [61] to [73]. Ms Smith contends that it would enable the power balance between her and the ALHD Inc, as a service provider, to be “equal”. She considers it to be unequal at present, where she is provided with a hearing assistance dog free of charge, and she feels beholden to the ALHD Inc and the Lions club members for doing so.
The task of the Tribunal is to assess Ms Smith’s Requested Support within the framework mandated by the NDIS Act and the Support Rules. For the reasons set out above, the Tribunal considers that, on balance, and after weighing up the matters set out in rr 3.4(b) and (c), that it is reasonable to expect that the community (through the ALHD Inc) will provide hearing assistance dogs to persons such as Ms Smith who are living with a hearing impairment. For this reason, the Tribunal concludes that the mandatory criterion under s 34(1)(e) of the NDIS Act has not been met by Ms Smith in respect of the Requested Support. It is not necessary for the Tribunal to consider the remaining five criteria under s 34(1) of the NDIS Act. By reason of Ms Smith not meeting the criterion under s 34(1)(e) in respect of the requested support, the Tribunal concludes that the Requested Support is not a “reasonable and necessary support” under s 34(1) of the NDIS Act. For this reason, the Tribunal concludes that this Requested Support should not be included in Ms Smith’s SOPS forming part of her NDIS plan.
Accordingly, the Tribunal affirms the decision under review.
I certify that the preceding 97 (ninety-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member K. Parker
................................[sgd]........................................
Associate
Dated: 14 June 2023
Dates of hearing: 1 and 2 June 2023 Applicant: In person Advocate for the Respondent: Ms Tegan Weir Solicitors for the Respondent: HWL Ebsworth Lawyers
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