Smith and National Disability Insurance Agency

This matter concerned an application by Ms Smith for review of a decision by the National Disability Insurance Agency (NDIA) to refuse to include funding for a hearing assistance dog in her statement of participant supports. Ms Smith, an adult with a profound hearing impairment, had been provided with hearing assistance dogs free of charge by the Australian Lions Hearing Dogs Inc (ALHD Inc). She sought $40,000 to reimburse ALHD Inc for its costs, expressing concerns about feeling beholden to the organisation and potential obligations regarding fundraising and media appearances, as well as the presence of local Lions club members in her home. The NDIA contended that it was reasonable to expect ALHD Inc to provide such supports.

The Administrative Appeals Tribunal (Tribunal) was required to determine whether the requested funding for the hearing assistance dog constituted a "reasonable and necessary support" under section 34(1) of the National Disability Insurance Scheme Act 2013 (Cth). Specifically, the Tribunal had to consider whether the criterion under section 34(1)(e) was met, which mandates that the funding or provision of a support must take account of what it is reasonable to expect families, carers, informal networks, and the community to provide. The Tribunal also considered the meaning of "community" within this provision and whether it extended to supports provided by an organisation like ALHD Inc.

The Tribunal found that the criterion under section 34(1)(e) was not met. While acknowledging that ALHD Inc provided hearing assistance dogs free of charge and did not intend to charge Ms Smith, the Tribunal considered the invoice for $40,000 to represent the estimated costs to ALHD Inc rather than an obligation for Ms Smith to pay. The Tribunal rejected the NDIA's contention that it was reasonable to expect ALHD Inc to provide the support, finding that the mandatory criterion under section 34(1)(e) was not satisfied in these circumstances. The Tribunal also noted that it would not apply certain NDIA operational guidance that it considered inconsistent with the broader framework for assessing reasonable and necessary supports.

The Tribunal affirmed the NDIA's decision under review.