SMYG and National Disability Insurance Agency

[2024] AATA 432

SMYG and National Disability Insurance Agency [2024] AATA 432 (15 March 2024)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):2022/1462      , 2023/0463

Re:SMYG

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Senior Member D Connolly

Date:15 March 2024

Place:Sydney

The internal review decision of 27 January 2022 made under subsection 100(6) of the National Disability Insurance Scheme Act 2013 (Cth), which confirmed the reviewable decision of 24 September 2021, and the internal review decision of 18 November 2022 (the existing statement of participant supports), also made under subsection 100(6), which varied the reviewable decision of 21 September 2022, are set aside and remitted for reconsideration with directions that:

1. the following reasonable and necessary supports will be funded under the National Disability Insurance Scheme:

(i)Level 2 transport support from 24 September 2021 until the approval of the Applicant’s next plan on 21 September 2022;

(ii)Psychology: 30 hours per year;

(iii)Pool membership: $156 per year for fortnightly physiotherapy/hydrotherapy;

(iv)One year of School Leaver Employment Supports funding from the date of the implementation of this decision;

(v)Level 3 transport support from the date of the implementation of this decision;

2. The date by which the Respondent will reassess the Applicant’s plan is 24 months from the date on which the supports under paragraph a(ii) to (v) are included in the Applicant’s existing statement of participant supports (the reassessment date).

3. All other reasonable and necessary supports in the existing statement of participant supports, not funded under paragraph a(ii) to (v), excluding any one-off assistive technology already funded, shall be replicated for a period of 24 months, from the date on which the supports under paragraph a(ii) to (v) are included in the Applicant’s existing statement of participant supports until the reassessment date.

4. The Respondent is to determine the appropriate mechanism for the provision of transport support funding and any reimbursement for transport support.

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

Senior Member D Connolly

CATCHWORDS

NATIONAL DISABILITY INSURANCE SCHEME – Applicant has autism spectrum disorder (Level 2), development coordination disorder, social anxiety disorder, hypermobility spectrum disorder, intellectual disability, and weight over the healthy range - reasonable and necessary supports – whether the Tribunal has jurisdiction to order the Respondent to reimburse or backpay the Applicant for past transport supports – decision remitted for reconsideration

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)

National Disability Insurance Scheme (Supports for Participants) Rules 2013

CASES

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179
Hill and National Disability Insurance Agency [2023] AATA 3626

XXWC by his mother and National Disability Insurance Agency [2020] AATA 923

SECONDARY MATERIALS

The National Disability Insurance Scheme – Operational Guidelines –
Planning, (web page)

Including Specific Types of Supports in Plans Operational Guideline - Transport (web page)

REASONS FOR DECISION

Senior Member D Connolly

BACKGROUND TO REVIEW

1. The Applicant is aged 17 and has been diagnosed with autism spectrum disorder (level 2), developmental coordination disorder, social anxiety disorder, hypermobility spectrum disorder, an intellectual disability and weight over the healthy range. He became a participant of the National Disability Insurance Scheme (the NDIS) on the basis of the impairments associated with these conditions.

2. The Applicant lives with his mother, KGCW, and two of his siblings, MVGS and KGWD, in regional New South Wales. He has an older adult sister, who no longer lives with the Applicant’s mother. The Applicant’s mother and siblings also have disabilities and are NDIS participants.

3. The National Disability Insurance Agency (the Respondent or the Agency) has approved plans, the subject of these reviews, as follows:

   (a)Plan A, approved on 24 September 2021, for the period to 24 September 2022 (total funding $76,392.65);[1]

   (b)Plan B, approved on 21 September 2022, for the period to 20 September 2024 (total funding $342,674.89).[2]

   (c)Plan C, approved on 18 November 2022, for the period to 17 November 2024 (total funding $350,822.47).[3]

   [1] 2023/0463 T27, NDIS Plan, p 165.

   [2] 2023/0463 T28, NDIS Plan, p 180.

   [3] 2023/0463 T29, NDIS Plan, p 196.

4. Plan A did not include transport supports.

5. Plans B and C included funding for transport supports, to support the Applicant’s access to work, study and community activities, both in the amount of $4,948.

6. On behalf of the Applicant, the Applicant’s mother sought internal review of the Plan A decision, seeking various additional supports, including transport support. On 27 January 2022 the internal reviewer confirmed the original decision.

7. The Applicant’s mother also sought internal review of the Plan B decision, seeking various additional supports. On 18 November 2022 the internal reviewer varied the original decision and created Plan C. Plan B already included transport support to be paid as fortnightly instalments into a nominated bank account.[4]

   [4] 2023/0463 T29, NDIS Plan, p 205.

8. On 22 February 2022 and 24 January 2023, the Applicant applied to the Administrative Appeals Tribunal (the Tribunal), pursuant to section 103 of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act), for review of the internal reviewers’ decisions.[5]

   [5] 2022/1462 T1, AAT Application for Review of Decision, p 1 and 2023/0463 T1, AAT Application for Review of Decision, p 1.

9. The hearing was conducted by videoconference and telephone on 6 December 2023. The Applicant was represented in relation to the review by his mother.

   ISSUES IN DISPUTE

10. At the hearing the parties explained to the Tribunal that the only issue in dispute is whether the Tribunal has the power to direct the Agency to reimburse transport support for the period of Plan A during which the Applicant was not being funded for transport support. No other supports were raised at hearing as being in issue.[6]

    [6] Transcript, pp 31 and 55.

    LEGISLATIVE FRAMEWORK

11. A participant’s NDIS plan must include a statement of participant supports, approved in accordance with the NDIS Act, and any rules made under the NDIS Act such as the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (the Supports Rules).

12. Subsection 33(2) of the NDIS Act requires that a participant’s plan must include a statement of participant supports prepared with the participant to be approved by the CEO. The statement of participant supports must specify the general supports, reasonable and necessary supports, the date by which the Agency will reassess the plan and the management of the funding.

13. In deciding whether to approve a statement of participant supports the Tribunal must be satisfied the supports are reasonable and necessary.[7]

    [7] NDIS Act, s 33(5)(c).

14. Subsection 34(1) of the NDIS Act states, with respect to reasonable and necessary supports, as follows:

    (1)For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:

    (a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;

    (b)the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;

    (c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;

    (d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;

    (e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;

    (f)the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:

    (i)     as part of a universal service obligation; or

    (ii)    in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.

15. Subsection 34(2) provides that the NDIS rules may prescribe methods or criteria to be applied, or matters to which the CEO must have regard, in deciding whether they are satisfied criteria under subsection 34(1) are met in respect of a requested support.

16. The NDIS Operational Guidelines also assist in making decisions in accordance with the Act. Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.[8] The relevant Operational Guidelines are Planning (the Planning Guidelines) and Including Specific Types of Supports in Plans Operational Guideline - Transport (the Transport Guidelines).

    [8] Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[1979] AATA 179; (1979) 2 ALD 634; (1979) 2 ALD 60.

17. With respect to jurisdiction, the Tribunal’s power to review decisions is relevantly addressed in paragraph 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) which provides that an enactment may provide that applications may be made to the Tribunal for review of a decision made in the exercise of powers conferred by that enactment. 

18. The NDIS Act is such an enactment. Section 103 of the NDIS Act provides that applications may be made to the Tribunal for review of a decision made by a reviewer under subsection 100(6) of the NDIS Act. Decisions that a reviewer may make under subsection 100(6) are made after a person directly affected by a reviewable decision asks the decision-maker to review that decision. Reviewable decisions are those set out in section 99 of the NDIS Act.

19. Relevantly, included in section 99 of the NDIS Act, as a reviewable decision, is a decision to approve the statement of participant supports, made under subsection 33(2) of the NDIS Act.

    MATERIAL BEFORE THE TRIBUNAL

20. The Tribunal has considered the parties’ submissions, the evidence filed with the Tribunal, and the oral evidence provided at the hearing.

21. The Tribunal notes the statement of participant supports included in the Applicant’s Plan A did not include transport support. However Plans B and C both include transport supports.

22. The Tribunal was informed at the hearing that there were several supports that had been in dispute but there is now agreement about those supports. The only outstanding issue was whether the Agency should reimburse the Applicant’s mother for transport support not included in the Applicant’s Plan A statement of participant supports.

23. In October 2023 the Respondent provided to the Tribunal draft terms of agreement which set out the supports the parties have agreed are reasonable and necessary as follows:

    (a)Psychology: 30 hours per year;

    (b)Pool membership: $156 per year for fortnightly physiotherapy/hydrotherapy;

    (c)School Leaver Employment Supports (SLES) funding: one year of SLES funding.[9]

    [9] Email from the Respondent’s representative to the Applicant’s mother and the Tribunal dated 17 October 2023, enclosing draft section 42C terms.

24. At the hearing the Respondent also informed the Tribunal that the Agency agreed that the Applicant’s transport support should be increased to Level 3 once he is receiving SLES funding, which the parties have agreed is a reasonable and necessary support.[10]

    [10] Transcript, p 31.

25. The Tribunal was informed by the Applicant’s mother that the Respondent had “refused to cover the gap between when it (transport support) was removed for him (in September 2021) and when they’ve decided that they’re going to reinstate it as a reasonable and necessary (in Plan B).”[11] She stated “I maintain that I have not been asking for anything new in relation to the transport funding, but rather to close the gap from when it was removed from … SMYG, to when it has once again been accepted as reasonable and necessary.”[12]

    [11] Ibid, p 30.

    [12] Ibid, p 38.

26. The Respondent informed the Tribunal that the Agency agrees that the transport supports should be included in the Applicant’s plans and the only issue in dispute was reimbursement of transport supports.

27. The Applicant’s mother told the Tribunal that, prior to Plan A being approved, on 14 September 2021, the planner informed the Applicant’s mother that the Applicant and his brother, KGWD, would be funded for transport.[13] The Applicant’s mother said that the planner indicated however that she was not going to include transport support in his sister’s (MVGS) plan. The Applicant’s mother questioned why the Agency would do this and the result was the planner took transport support out of the Applicant’s (and his brother’s) plan.

    [13] Email from the planner to the Applicant’s mother dated 14 September 2021, filed by the Applicant’s mother on 18 September 2023.

28. At the hearing the Tribunal asked the parties if there were any other issues in dispute in the Applicant’s case. The Respondent submitted the only issue was “the reimbursement issue for SMYG’s plan in Plan A. We’ve agreed to Level 3 transport once the new plan comes into place because of the SLES funding that he’s going to be accessing. But my understanding is that (the Applicant’s mother) is seeking back payment of level 2 transport for Plan A.”[14] The Applicant’s mother confirmed “That is correct. And no, I am not seeking reimbursement for the Level 3.  I am seeking for the Level 2 for SMYG.”[15]

    [14] Transcript, p 55.

    [15] Ibid.

29. The Applicant’s mother explained that she had previously been to the Tribunal for her adult daughter. In that case the Agency had agreed to reimburse for transport and the matter was settled pursuant to section 42C of the AAT Act, as the parties agreed on terms.

30. The Tribunal noted that in another matter before the Tribunal (differently constituted)[16], albeit with different facts, Member Webb found that transport supports were to be funded in periods of the plan under review. The Tribunal asked for the Respondent’s view as to whether it would be appropriate to do so in this case.

    [16] Hill and National Disability Insurance Agency, [2023] AATA 3626 (Hill).

31. The Respondent submitted that the Tribunal has the power to direct that a support should be included in a statement of participant supports from a particular date, but the amount of reimbursement is a matter for the Agency to determine. The Respondent submitted that in this case that would probably be determined on the basis of evidence such as receipts. As to why this approach is taken rather than merely back paying the equivalent amount of transport support based on the level of support to be funded, the Respondent submitted that transport supports are funded differently to other supports in a participant’s plan as a fortnightly deposit is paid into a participant’s bank account. Given this practice, the Applicant’s mother would need to satisfy the Agency that the transport funding for those supports have, in fact, been used.[17] 

    [17] Transcript, pp 24 – 25.

32. The Respondent argued that the Tribunal does not have jurisdiction to make any notations that the Agency must reimburse a participant for costs incurred during a particular period as that would be outside the scope of the review, but the Tribunal does have power to state that particular supports were reasonable and necessary from a particular date.[18]

    [18] Ibid, p 26.

33. With respect to the adult daughter having received back payment, the Respondent explained that the Agency agreed to it in that case because it was a cents per kilometre method used, and it was something that was highly specific to the adult daughter’s case.[19]

    [19] Ibid, p 32.

34. With respect to Hill, the Respondent submitted it can be distinguished from the Applicant’s case. Firstly, the decision in Hill was based on logbooks and cogent evidence that the Applicant had produced to the Tribunal. Also Mr Hill’s matter was quite different factually, because of his disabilities. It was a “cents-per-kilometre case” as the usual Level 1, 2, 3 of transport was deemed unsuitable, and so there needed to be a calculation based on how much transport was actually undertaken to support the particular participant.

35. The Tribunal notes in Hill, transport funding was provided for Mr Hill’s emotional regulation, as part of a behaviour support plan, designed to manage his emotional dysregulation. That plan specified that a lot of time during the day was to be spent driving. Mr Hill, an adult, has Level 3 autism spectrum disorder, and a severe intellectual disability. He liked to be driven in the car as a calming strategy.[20] The Tribunal also notes Mr Hill’s representative was able to file contemporaneous logbooks which assisted Member Webb to calculate the number of kilometres travelled per day.

    [20] Hill, para 180.

36. The Respondent indicated the Agency is likely to reimburse the Applicant’s mother to the extent that she can provide evidence supporting expenditure for transport supports from the start date of Plan A. The Respondent submitted that the Agency is able to reimburse for those particular expenses.[21] 

    [21] Transcript, p 33.

37. The Respondent considered information provided by the Applicant’s mother setting out the requisite amount of travel required to transport her children, MGVS and KGWD. Having considered that material, the Tribunal was informed the Agency had agreed to fund those children’s transport support at Level 2.[22]

    [22] Ibid, p 47.

38. With respect to the issue of reimbursement for MGVS and KGWD, the Respondent submitted that the Tribunal has no jurisdiction to order the Agency to reimburse an amount.  However if the Tribunal states that Level 2 transport support, at the higher rate, should be included in the plan, from the start date of Plan A, then the Agency agrees to contact the various providers and do the necessary work to ascertain which of those appointments were undertaken in person. The Respondent submitted that once the Agency confirms which sessions were held in person, then the finance team will organise reimbursement for travel undertaken to those providers from the commencement of Plan A.[23] The Tribunal has assumed the Agency intends to adopt a similar approach with the Applicant. 

    [23] Ibid, pp 47 – 48.

39. The Applicant’s mother raised her concern that the Respondent was trying to negate its responsibility for wrongfully omitting transport supports from the children’s plans in September 2021. She stated “while I understand that there has been COVID-19 and that’s maybe where they’re coming from, if that was put into the plan originally on 21 September – the original plan that brought us to this place, that would have been paid during that time.”[24]  Essentially in her view she is being penalised because the Agency failed to include transport support in Plan A, approved on 24 September 2021.

    [24] Ibid, p 48.

40. At this point, the hearing was adjourned so the Applicant could consider the Respondent’s offer to settle the matter. During the adjournment the parties exchanged correspondence regarding their respective positions.  After reconvening, the Respondent confirmed its view that the Tribunal can find that a support was a reasonable and necessary support from a particular date, or from the beginning of Plan A; but it cannot direct the Agency to reimburse a particular amount of money.

1. The Applicant’s representative referred to an email sent to the registry during the adjournment and asked that the Tribunal read it, as it reflects the Applicant’s position with respect to reimbursement. That email relevantly states as follows:

   to reimburse (not backpay) what should have been available to (the Applicant’s mother) and her family over the past two years, the Agency is stating they will return to each individual provider engaged, over a two-year period, to determine what appointments were attended face to face verses not.

   This is absurd. That task is going to take endless hours on the agencies behalf, it’s going to take significant time and effort on the providers behalf (some of whom are no longer engaged), and there’s no guarantee that the results will be accurate. For example, how does the agency expect a no longer engaged Occupational Therapist to say for certain if an appointment on the 7 November 2021 was attended face to face? The children attend allied health appointments weekly. Does the agency truly expect each engaged provider over the past 24 months to invest time in auditing their own records to determine if approximately 104 weeks of appointments were face to face or not? More importantly, how does the agency think this style of investigation reflects on (the Applicant’s mother)?

   Whether the tribunal has jurisdiction over reimbursement or not is irrelevant. The agency is clearly in a position to negotiate a reimbursement for supports the family has unjustly had to go without, due to errors and inconsistencies on their own behalf. The agency is simply going about it in the hardest way possible, and in a way that is only going to cause ongoing detriment to the participant.

   The offer of Level 2 transport is accepted.

   The offer of returning to each provider engaged over a two-year period to determine a reimbursement figure is not.

   It remains unclear to both (the Applicant’s mother) and I if the Tribunal can rectify errors from plans issued dating back to September 2021. If so, that is the outcome sought.[25]

   [25] Email dated 6 December 2023 sent by the Applicant’s representative.

2. The Applicant’s mother asked if the Agency’s system can automatically pay the transport support that should have been in the children’s plans from September 2021, stating that, if the Agency chose to not reimburse or “back pay”, she plans to take the matter to the High Court of Australia. She believes she should not be penalised because of COVID-19 when no other participant was penalised.

3. The Tribunal explained that its powers to make decisions are set out in the relevant law. It explained that reviewable decisions are listed in the NDIS Act (section 99) and that the relevant power in this case is the power to review a statement of participant supports. It indicated it may find it does not have jurisdiction to order the Agency to reimburse a particular amount.

   CONSIDERATION OF THE MATERIAL BEFORE THE TRIBUNAL

4. The Tribunal notes the parties appear to have agreed, as set out in the draft terms of agreement provided to the Tribunal in October 2023, that the following supports are reasonable and necessary, to be included in a 24-month plan:

   (a)Psychology: 30 hours per year;

   (b)Pool membership: $156 per year for fortnightly physiotherapy/hydrotherapy;

   (c)School Leaver Employment Supports (SLES) funding: one year of SLES funding.

5. Neither party raised any concern at the hearing about these supports being in dispute. The Tribunal is satisfied the only support in dispute is the reimbursement of transport support for the period of Plan A.

6. The Respondent advised the Tribunal that the Agency has agreed that the Applicant’s transport support should be increased to Level 3 once he is receiving SLES funding, which the parties have agreed is a reasonable and necessary support.

7. The Tribunal accepts the Applicant’s mother’s oral evidence that the Applicant had been funded, in his plan prior to Plan A, for transport support. Transport support was then not included in Plan A. However the Agency then included transport support in the Applicant’s Plan B and Plan C.

8. The Tribunal has considered the Applicant’s Plan A statement of participant supports which sets out the Applicant’s background, the activities he attends, the challenges he faces and his goals and aspirations, including enrolment at TAFE, improving his motor skills, strength and coordination and increasing his participation and contribution in the home and his community. It notes the Respondent no longer objects to transport support being included in Plan A. Having regard to the material before it, the Tribunal is satisfied Level 2 transport support is a reasonable and necessary support for the Plan A period, 24 September 2021 to 24 September 2022.

9. The Tribunal is also satisfied those supports now agreed on, set out above, being psychology, pool membership and SLES funding, are reasonable and necessary supports.

10. Having regard to the Transport Guidelines and the Applicant’s goals and aspirations, the Tribunal agrees with the Respondent’s view that Level 3 transport support is reasonable and necessary, once he is receiving SLES funding.

11. There is nothing before the Tribunal to indicate that any of the other supports provided in Plans A, B and C are not reasonable and necessary supports. 

12. The Tribunal has considered the Applicant’s request that the Tribunal order the Agency to reimburse the Applicant the equivalent amount that would have been paid if the transport support had been included in the Applicant’s statement of participant supports in Plan A.  It is apparent that, had the Level 2 transport support been included in Plan A, a fortnightly deposit would have been paid for the support. Essentially the Applicant’s mother is now requesting that the Tribunal make an order that the Agency reimburse the equivalent amount. The Tribunal appreciates why she is making this request. However for the following reasons the Tribunal has concluded it does not have the power to make such an order.

13. As was explained at the hearing, the Tribunal’s powers to review the decisions in this case, decisions to approve the statements of participant supports, are set out in the relevant law; paragraph 25(1)(a) of the AAT Act and section 99 of the NDIS Act.

14. The review of a decision made by the CEO under subsection 33(2) of the NDIS Act to approve a statement of participant supports is provided for by item 4 of subsection 99(1). Such a decision was made with respect to Plan A by the CEO on 24 September 2021. The internal reviewer confirmed the CEO’s decision of 24 September 2021, made pursuant to subsection 33(2) of the NDIS Act, to approve the statement of participant supports included in Plan A, which did not include transport support. The Applicant then made an application to the Tribunal for review under paragraph 100(6)(a) of the NDIS Act.

15. A similar request for reimbursement was made in XXWC by his mother and National Disability Insurance Agency [2020] AATA 923 (XXWC), in which DP Forgie was asked by XXWC’s mother to make an order that the Agency reimburse the costs of early intensive behavioural intervention (EIBI) supports that had not been included in the statement of participant supports under review but were found by DP Forgie to be reasonable and necessary. DP Forgie decided she could not make the order noting that the decision affecting XXWC’s rights was the decision by the CEO to approve a statement of participant supports. She explained with respect to the decision to approve a statement of participant supports that:

    It is the operative decision that affected XXWC’s rights. It is not the decision made by the reviewer for the decision simply confirmed the CEO’s decision that was already operative.

    Once an applicant has lodged an application for review of a decision, the Tribunal has power to review that decision…

    For the purposes of reviewing a decision, the Tribunal “... may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision.” This is subject to any qualification made by the enactment conferring the right to make an application for review of a decision. The CEO’s powers in deciding whether to approve, or not approve, a statement of participant supports under s 33(2) of the NDIS Act must be made having regard to criteria set out in provisions such as ss 33(5), 34 and 35. …

    There is nothing in the scope of the decision that must be made or in the matters, to which regard must be had, that deals with payment of supports approved in a statement of participant supports. That means that payment is not a matter within the scope of the Tribunal’s power to review. I would also note that decisions about payment are not specified as reviewable decisions in s 99 of the NDIS Act. As I cannot review any decisions about payment, I have no power to order that any amount of XXWC’s parents’ expenditure be reimbursed. That is not to say that the Agency itself does not have power to reimburse XXWC’s parents for monies they have expended on EIBI but what it requires to authorise reimbursement is a matter for it and its auditors.[26]

    (Emphasis added)

    [26] XXWC, para 121 – 124.

16. The issue of reimbursement was also considered in Hill. While in that case Member Webb identified with some detail the reasonable and necessary transport support to be funded from a period before his decision, on the issue of reimbursement Member Webb stated:

    Where approval of a contested support for a participant is initially refused and on review it is found to meet the thresholds in s 34(1) of the NDIS Act, questions of practicality or utility might arise when considering funding the support from the earliest date the reviewable decision had effect in the past. There may also be questions for the NDIA or a plan manager about the crystallization of funding approval into entitlement to payment or reimbursement of previously incurred costs in the particular circumstances of and related claim. Nevertheless, such questions should not be confused with a participant’s statutory entitlements to review. Once a participant’s statutory entitlement to review is enlivened by request under s 100(2) or by subsequent application to the Tribunal under s 103(1), such questions of utility may readily be dealt with in the review. Such considerations do not curtail the participant’s statutory entitlement to review, and they do not limit the scope of the review, which runs from the date the original decision had or could have had effect under applicable provisions of the NDIS Act.[27]

    …

    (S)ubmissions put on the basis of cost recovery by Mr Hill’s representatives must be rejected. Recovery in the form of reimbursement is a secondary consideration which might arise for Mr Hill and the NDIA consequent to approval of reasonable and necessary supports which will be funded from 21 May 2019, albeit determined on review, in retrospect.[28]

    [27] Hill, para 86.

    [28] Ibid, para 246.

17. While this Tribunal is not bound by the decisions in XXWC and Hill, it finds the approaches persuasive and correct. The Tribunal is also of the view that it does not have the power to order the Agency to reimburse the equivalent amount of transport support, had it been included in Plan A from the start date, 24 September 2021. That being said, the Agency still has the power to reimburse the Applicant. What it requires to authorise reimbursement is a matter for the Agency and its auditors.

    CONCLUSION

18. The Tribunal is satisfied that Level 2 transport support is a reasonable and necessary support, from the start date of Plan A, 24 September 2021, until transport support was included in Plan B. It is also satisfied the psychology, pool membership and SLES supports are reasonable and necessary.

19. Any reimbursement for monies expended on transport support prior to the implementation of this decision, and the way in which any amount to be reimbursed is calculated, is a matter for the Agency.

    DECISION

20. The internal review decision of 27 January 2022 made under subsection 100(6) of the National Disability Insurance Scheme Act 2013 (Cth), which confirmed the reviewable decision of 24 September 2021, and the internal review decision of 18 November 2022 (the existing statement of participant supports), also made under subsection 100(6), which varied the reviewable decision of 21 September 2022, are set aside and remitted for reconsideration with directions that:

    a.the following reasonable and necessary supports will be funded under the National Disability Insurance Scheme:

    (i)Level 2 transport support from 24 September 2021 until the approval of the Applicant’s next plan on 21 September 2022;

    (ii)Psychology: 30 hours per year;

    (iii)Pool membership: $156 per year for fortnightly physiotherapy/hydrotherapy;

    (iv)One year of School Leaver Employment Supports funding from the date of the implementation of this decision;

    (v)Level 3 transport support from the date of the implementation of this decision.

    b.The date by which the Respondent will reassess the Applicant’s plan is 24 months from the date on which the supports under paragraph a(ii) to (v) are included in the Applicant’s existing statement of participant supports (the reassessment date).

    c.All other reasonable and necessary supports in the existing statement of participant supports, not funded under paragraph a(ii) to (v), excluding any one-off assistive technology already funded, shall be replicated for a period of 24 months, from the date on which the supports under paragraph a(ii) to (v) are included in the Applicant’s existing statement of participant supports until the reassessment date.

    d.The Respondent is to determine the appropriate mechanism for the provision of transport support funding and any reimbursement for transport support.

61.      

62.     I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for the decision herein of Senior Member D Connolly.

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

Associate

Dated: 15 March 2024

Date(s) of hearing:	6 December 2023
Date final submissions received:	11 January 2024
Advocate for the Applicant:	Ms K Matheson, Support Coordinator
Solicitors for the Respondent:	Ms A Wong, Mills Oakley