Snoxell and National Disability Insurance Agency
[2021] AATA 4731
•17 December 2021
Snoxell and National Disability Insurance Agency [2021] AATA 4731 (17 December 2021)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2020/8207
Re:Michelle Snoxell
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Dr Stewart Fenwick, Senior Member
Date:17 December 2021
Place:Melbourne
The Tribunal affirms the decision under review.
...[sgd]....................................................................
Dr Stewart Fenwick, Senior Member
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – reasonable and necessary supports – applicant with mobility issues – whether NDIA should fund a lift – whether funding the support is consistent with Support for Participant Rules and operational Guidelines – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
Cases
Loadsman and National Disability Insurance Agency, Re [2021] AATA 1990
LZMX and National Disability Insurance Agency, Re [2021] AATA 378
McGarrigle v National Disability Insurance Agency [2017] FCA 308
National Disability Insurance Agency v WRMF, Re [2020] FCAFC 79QDKH v National Disability Insurance Agency [2021] FCAFC 189
Secondary Materials
National Disability Insurance Agency, ‘Including Specific Types of Support in Plans Operational Guideline - Home modifications’, Operational Guidelines (Web Page, 18 July 2019) < Disability Insurance Scheme (Supports for Participants) Rules 2013
REASONS FOR DECISION
Dr Stewart Fenwick, Senior Member
17 December 2021
BACKGROUND
Mrs Snoxell applied to the Tribunal on 10 December 2020 for review of a decision by a delegate of the chief executive of the Respondent agency dated 27 November 2020. In that decision, the delegate affirmed an earlier decision not to approve funding for installation of a lift in what was at the time Mrs Snoxell’s planned new residence.
Mrs Snoxell is a woman in her early 60s who has a number of health conditions, by reason of which she has difficulty mobilising and relies on a walking frame. At the time of the hearing, she and Mr Snoxell had moved into their new home, which is a large two-level house designed by the couple. Mrs Snoxell is confined to living in a ground floor guest room as she is unable to navigate stairs without significant help. The first floor contains the master bedroom, additional bedrooms and a recreational area.
Construction of the new home began in mid-2019 and the property was designed to include a lift. Occupancy was approved in early 2021 and the couple moved in in April 2021. Mrs Snoxell became a participant in the National Disability Insurance Scheme (NDIS) on
4 February 2020 and her first plan was approved in April 2020. An unscheduled plan review took place later in 2020 and it was following approval of this further plan that Mrs Snoxell specifically sought funding for the planned lift, with an anticipated cost of $32,000.00–$35,000.00.The house is a large two-storey property on a partly excavated block with a total building area of approximately 400m2. It has an accessible garden, and the internal corridors, doorways and main bathrooms have been designed to be accessible. The upper floor comprises the master bedroom and an en-suite bathroom, with three further bedrooms and a large rumpus room or lounge including kitchenette. The lower ground comprises a guest bedroom with en-suite bathroom, a room designed and fitted with shelves as a sewing room, toilet, laundry and a kitchen opening to a family room. Stairs run to the rumpus room from the family room and the lift shaft is adjacent to this space. An entertainment room with illuminated flooring and bar runs off the family room. A large workshop and garage also forms part of the ground floor area.
Mrs Snoxell has had several plans approved, each funded in the region of $40,000 per annum. In her profile statement, the plans carry the statement ‘we are in the process of building a new house, as it was impossible to put in a lift in our current house’. Mrs Snoxell’s plans identify short term goals including accessing support to make her feel safe at home, and the medium term goal of improving her mobility and increasing independence. Funded supports typically include low-cost assistive technology, various therapies and the assistance of a support worker. The plans also include funding for design consultation for home modifications.
Mrs Snoxell represented herself and lodged documents including medical material, information in relation to the development of the property including lift supply and installation, and several statements. Following the hearing, Mrs Snoxell provided several images of two rooms on the ground floor of the property and of the garage. Both Mrs Snoxell and her husband gave evidence at the hearing. Ms Gemma Hext, occupational therapist, was called to give evidence at the hearing by Mrs Snoxell.
The Respondent lodged a Statement of Facts, Issues and Contentions (SFIC), T documents (lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth)), and supplementary T documents (ST). The Respondent provided a consolidated hearing book incorporating Mrs Snoxell’s material which is the source of the references in this decision. Mr Naveen Potti, of the planning department of the Yarra Ranges Council, was called by the Respondent to give evidence at the hearing. Evidence was also given by Ms Deborah Hammond, occupational therapist.
LEGISLATION
Among the objects and principles underpinning the National Disability Insurance Scheme Act 2013 (the Act) are:
(a)Support for the independence and social and economic independence of people with a disability (s 3(1)(c)), noting that regard must be had to the financial sustainability of the scheme when giving effect to the objects (s 3(3)(b));
(b)People with a disability should receive reasonable and necessary supports that support them to pursue their goals and maximise their independence and to live independently (s 4(11)); and
(c)The role of families, carers and other significant persons in the lives of people with a disability ‘is to be acknowledged and respected’ (s 4(12)).
A large number of principles are identified in s 31 of the Act. This section provides, in effect, that preparation, review and implementation of participant plans, and their management, ‘should so far as reasonably practicable’ be consistent with these principles. They include: respect for the role of family in the life of participants; the right of the participant to exercise control over their life; and maximising the participant’s choice and independence.
Accordingly, under s 33(2)(b) of the Act, an NDIS participant’s plan must include a statement of reasonable and necessary supports (if any) that will be funded. Section 33(5) sets out a number of matters that the CEO must have regard to when approving such a statement of supports, including the satisfaction of the criteria set out in s 34(1) of the Act.
Section 34(1) of the Act requires that a decision maker be satisfied of all of the following criteria:
(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.
Rules have been made under s 34(2) of the Act and clause 3.1 of the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (the Rules) address the value for money criteria. The clause states that value for money involves a decision as to whether ‘the costs of the support are reasonable, relative to the benefits achieved and the cost of alternative support’. Under this clause, consideration must be given to whether the support will increase the participant’s independence and reduce the need for other supports, noting that, for example, home modifications may reduce the need for home care.
Clause 5.1 of the Rules sets out general criteria for supports which include that a support will not be funded if it does not relate to the participant’s disability (cl 5.1(b)).
Home modification is further dealt with in Operational Guidelines issued by the CEO. The Home Modifications Guideline states that consideration will be given to:
(a)Whether lower cost modifications may reasonably achieve the same benefits or outcomes;
(b)Whether the proposed home modification is cost effective when compared to other supports such as the cost of moving to accessible premises; and
(c)The expected length of tenure in the premises.
This guideline states further that the Respondent will generally fund reasonable and necessary home modifications where:
(a)A participant is ‘unable to reasonably access and use frequently used rooms and spaces using standard fixtures and fittings’;
(b)Where their primary residence in its current condition has ‘significant and adverse impact on the sustainability of current living and care arrangements’; and
(c)Where a qualified occupational therapist has recommended home modifications, having considered all other possible alternatives.
This guideline also states that the Respondent will generally not fund a lift to allow access to multiple levels of a home. However, when considering this kind of modification, consideration will also be given to:
(i)Whether other parts of the house can be reasonably organised as an alternative;
(ii)Whether alternate accommodation which is more accessible or more easily modified is available and the cost;
(iii)Whether there are compelling factors related to the participant, their family, community or employment which makes moving premises unrealistic;
(iv)The long term cost and benefits of alternative funded supports against the costs and benefits of the modifications to the home …
It is generally expected that home modifications will be suitable for the participant’s anticipated long term needs. Therefore, it is unlikely that further modifications will be funded for the same premises except where there are unforeseen and significant changes to the participant’s needs.
EVIDENCE
Written evidence
There was a relatively large volume of written material lodged in this matter. I consider it helpful to provide some brief summaries of key material to provide context for issues raised at the hearing.
Mrs Snoxell states (H37) that a review was undertaken by an occupational therapist in consultation with the builder and her husband. She understood funding had been offered to modify a bathroom but she preferred any funding be allocated toward a lift.
In August 2020, Ms Hext submitted a request for supply and installation of a lift and bathroom modifications for the ground floor (H7). Both requests were denied by the Respondent in September 2020. In addition to describing Mrs Snoxell’s mobility issues, she states that Mr Snoxell had explained that a double-storey property was required due to the sloping block and site coverage restrictions, and he considered it a better use of the land.
A letter of recommendation by Ms Hext (H30) states that it would not be feasible to hire support workers purely for the purposes of mobilising via stairs. She also states that installation of a stair lift is not possible due to the width of the stairs and absence of appropriate reinforcing.
Further, Ms Hext states that Mr Snoxell is not always at home to assist and may also be at risk if assisting his wife with stairs. She also expresses the opinion that the ground floor cannot accommodate the couple’s present king single/queen bed combination and allow for both adequate circulation and Mrs Snoxell’s medical equipment (breathing machine and lymphedema pump).
A detailed analysis of dimensions is contained in a further letter of support (H32) and Ms Hext states here that the space could potentially be managed ‘if all equipment can be positioned optimally’, noting that at present Mrs Snoxell’s breathing machine rests on her bedside table and the pump on a chair next to her bed, but noting issues with installing the queen bed.
The report, made using the complex home modifications template, states there are no wheelchair accessible bathrooms in the property and recommends various modifications to the ground floor bathroom given that wheelchair use is an anticipated future need. Provision of a lift for the already constructed lift shaft is also recommended. Ms Hext notes that Mrs Snoxell uses a four-wheel walker and that use of the stairs presents a falls risk.
Ms Hammond completed a detailed review of the house plans for the Respondent (H42). She describes the ground floor as fully complying with accessibility requirements. The report considers other changes appropriate including converting the existing sewing room to a bedroom and moving the sewing function to the entertainment room.
With respect to the lift capacity, Ms Hammond states that the option considered during construction can accommodate a manual wheelchair and no companion person.
Access Request Forms completed by Associate Professor Dennis Engler (H18, H21) state the desirability of a lift in a two-storey residence, and note that Mrs Snoxell has had bilateral knee replacements and that she has difficulty using stairs. A letter also by Associate Professor Engler (H31) expresses his support for lift installation and states that ‘it is conceivable with the passage of time, Michelle may eventually become wheelchair bound …’.
A letter from the home designer (H35) states that there was a ‘restrictive’ 30% site coverage requirement due to overlays affecting the site. Therefore, a two-storey dwelling was required, and accordingly a lift had been included in the design and he understood this to be outside the couple’s budget.
Evidence at hearing
Mrs Snoxell explained in evidence that her mobility problems arose from complications arising after a medical procedure some time ago. She stated that she has given up work, that her condition affects her ‘in every way’, and it is getting worse. Mrs Snoxell understands that her endocrinologist considers that she will end up in a wheelchair, but she has not yet been ‘fitted’ for one.
Mrs Snoxell stated that she is able to cook (although not roasts) and sew, and is able to perform basic cleaning tasks only, such as wiping down benches. Mrs Snoxell uses a four-wheel walker around the house. She stated she is unable to use stairs unless accompanied on both sides by another person, and stated that this problem emerged at the couple’s previous house.
During construction of their house, Mrs Snoxell lived for a time in a serviced apartment. She stated that she was still working and able to look after herself. Her husband joined her for meals and otherwise was in a caravan at the house site.
Mrs Snoxell described the two-storey, five-bedroom house design as reflecting what they wanted, including to have space for family to stay on holidays, as a daughter lives overseas. She stated that the property was funded through their superannuation fund, and is otherwise occupied only by herself and her husband. Mrs Snoxell described her other requirements in the design included a sewing room, a bigger bathroom, and general accessibility.
Mrs Snoxell stated that she first raised the concept of a lift in her initial NDIS planning meeting with her Local Area Coordinator in February or March 2020. There was no other contact with the Respondent about this request.
Mrs Snoxell explained that she wished to utilise the full property and expected the grandchildren to be in the upstairs bedrooms when they stay over. She also intends to perform her quilting in an upstairs bedroom as she usually does this in a separate room to her sewing.
Mrs Snoxell also expressed her desire to spend time with her husband upstairs. She explained that she requires an adjustable bed to assist her with mobilising and has medical equipment adjacent to her bed. Mrs Snoxell stated that the couple had been using separate beds for the past three to four years and she estimated that she calls on her husband for direct assistance two to three times per week.
Mrs Snoxell stated that she considers there to be insufficient room for her husband to join her in the downstairs guest suite. She was not confident that the sewing room could be repurposed as a bedroom and noted that she would need to use the en-suite bathroom in the adjacent guest room. Mrs Snoxell considered that there may be an option to repurpose the entertainment room for her quilting, but this would involve setting up and disassembling the quilting machine.
Mr Snoxell was asked in evidence to describe the design and planning process, given a report indicating that he had understood the Council had a limit of 35% site coverage. He stated that the original design was around 38% site coverage and that he understood that the planner he engaged had obtained approval for 35%.
Mr Snoxell was not certain about the underlying planning requirements but was aware that neighbours had objected. Mr Snoxell explained that he needed a large space to store his caravan, particularly as on-street parking was not permitted, and his boat which is only a ‘tinnie’. He added that they had reduced the length of the premises in order to bring it within the 35% coverage.
Mr Snoxell stated that they had sought a flat block of land on which to build for some years but had been unsuccessful. He had built their previous home and considered that the major engineering work required to install a lift was unfeasible. Mr Snoxell stated that he honestly thought there would be ‘no drama’ obtaining approval for a lift. He had sought specialist input and settled on the cheapest option identified.
Mr Snoxell stated that they never intended to live on the ground floor and so the design remained as planned. He stated that he could make a change from his preferred queen size bed albeit that was not optimal, and he also stated that the downstairs powder room adjacent to the sewing room was only accessible for a walking frame.
Mr Potti stated in evidence that he has been the senior planner with Yarra Ranges Council for four years. He was not involved in the original approvals for the property but had reviewed the matter in order to provide his evidence.
Mr Potti explained that the site coverage overlay triggers a planning approval process if the proposed development exceeds 30% site coverage. He described various factors and other overlays that are in place and agreed that there was no restriction on the volume of premises on a site. Rather, the Council looked at the site in context, including neighbouring developments and the percentage site coverage in relation to landscaping.
Ms Hext confirmed in evidence that she had provided a number of written reports and recommendations about home modification. She confirmed that Mrs Snoxell had reported her needs with respect to overnight assistance from her husband and accepted that at the time the couple were not sleeping in the same room.
Ms Hext stated that she had not discussed with them a different choice of beds and understood that two king singles would occupy more space than a king single plus queen bed. She had not fully considered the use of the guest suite or sewing room by the couple. While the guest suite may be an adequate space now, Mrs Snoxell’s needs may change as it may be that a hoist would be required in future.
Ms Hext stated that the expectation that Mrs Snoxell have access to her whole house was reasonable, and easily understood. She considered that it was beneficial for Mrs Snoxell’s emotional well-being. With respect to the space allowed for a lift, Ms Hext understood that the potential to accommodate a powered wheelchair had been discussed with the supplier.
Ms Hammond confirmed that she had provided a written report, and described her expertise in respect of home modifications. She explained that her analysis had been based on the NDIS Specialist Disability Design Standard.
In her opinion, the ground floor of the Snoxell house is compliant with accessibility standards, as is the first floor. Ms Hammond stated that the relevant standard for wheelchair lift access is based on a powered wheelchair, and she understood that the three options from a selection had been made were not adequate for this purpose.
SUBMISSIONS
On the Respondent’s behalf it was contended at the hearing that it was not appropriate to expend public funds on a lift given the decision, arrived at independently by Mrs Snoxell, to construct a large house with diverse features and functions in mind.
More specifically, it was submitted that: this support was not reasonable and necessary in the terms of the Act and did not satisfy the criteria specified at ss 34(1)(c) and (e); it had implications for the sustainability of the NDIS; and, funding was not consistent with the relevant guidelines.
In relation to the statutory criteria, it was contended that the Respondent had effectively been presented with a fait accompli. While acknowledging that Mrs Snoxell first applied to become a scheme-participant in 2017, the design incorporated a lift as the only option, as the stairwell could not accommodate one of the possible alternative forms of support. Equally, Mrs Snoxell’s needs can be met from facilities on the ground floor, which complies with accessibility guidelines.
It was submitted that the lift could be considered a ‘lifestyle’ choice in the terms referred to in the decision of the Tribunal in LZMX and National Disability Insurance Agency [2021] AATA 378, [153]–[154] (LZMX). There was no external requirement impacting the design and, in any event, the property was quite substantial, reflecting choices extending beyond Mrs Snoxell’s disability needs. Further, as a capital improvement, the lift was not in any way recoverable or transferable, as described in the Tribunal decision of Loadsman and National Disability Insurance Agency [2021] AATA 1990, [107] (Loadsman). Given the range of personal considerations affecting the design choices, it was submitted that the lift was a cost best funded by the family itself.
It was contended that the Tribunal had taken account of the financial sustainability of the NDIS in similar circumstances in the decisions already cited. Moreover, in this context, it was submitted that a reasonable and necessary support must be ‘consequent upon and relevant to’ the disability (citing LZMK [168]).
Finally, it was submitted that the home modification guidelines are not binding, but that they state that a lift is generally not to be funded. While there may be occasions where it is warranted, this is not the case with the present facts.
The Respondent accepted that the Act recognises that the role of family and care givers is to be acknowledged and respected (s 4(12)). Accordingly, Mrs Snoxell’s desire to fully share her house with her husband was an important consideration. Nevertheless, options for reconfiguration of the existing spaces were explored at the hearing and this opened up options.
Mr Snoxell, on his wife’s behalf, submitted that they could not wait on the NDIS and so the plans had been approved prior to her acceptance into the scheme. He contended that it was appropriate that Mrs Snoxell feel entitled to enjoy her home and have time with her family. While options for rearranging the house might be feasible, he considered the cost of modifications might well exceed that quoted for the lift. He also understood that the cost of a stairlift would also exceed that of a lift.
CONSIDERATION
For the benefit of Mrs Snoxell, I will commence by observing that the Tribunal usually is not bound to make decisions in accordance with any particular previous decision of the Tribunal. However, as two decisions have been raised in the Respondent’s submissions which both involved a request for lift installation, I will summarise them briefly.
The decision of LZMX involved a couple who needed to move from their home, which was unsuitable as the Applicant had become a double leg amputee. They chose to live on the top floor of a premises owned by their daughter’s business, which occupied the ground floor. A lift was ordered at a proposed cost of some $80,000, including structural changes, prior to an approach being made to the NDIS for funding. In finding that the lift was not value for money for the purposes of the Act, the Tribunal referred to several factors including: the ‘lifestyle’ choice of living on the first floor of the chosen property; a prior decision to reposition a staircase which removed the option of other solutions; and the fact that the Applicant in that matter had a lifetime lease, but no proprietary interest in the property.
The decision of Loadsman involved an applicant newly diagnosed with motor neurone disease who lived with her husband, three children and mother. The family occupied a two-storey house with staircase, purchased sometime prior to the diagnosis, which was made during the course of renovation work. Funding was sought for an elevator to be located on the outside of the house, with the cost including modifications in the order of $100,000, about half of the modifications were for the lift. Funding was also recently approved for the Applicant in that matter for a powered wheelchair. The report of an occupational therapist indicated that a ‘stairclimber’ was a cost-effective alternative. The Tribunal decided that a stairclimber and associated modifications were a reasonable and necessary support.
Determining what is a reasonable and necessary support has been described by the Full Court of the Federal Court of Australia as a highly individualised task and a fact-intensive exercise (National Disability Insurance Agency v WRMF [2020] FCAFC 79, [152]). This is because the phrase itself is not defined in the Act. Instead, as set out above, there are a number of criteria in s 34(1) of the Act, all of which must be satisfied for a support to be funded.
Some guidance is provided by the decision of Mortimer J in McGarrigle v National Disability Insurance Agency [2017] FCA 308 (McGarrigle). This decision states that reference may be made to the context of the Act, specifically, the provisions highlighting empowerment of persons with a disability (s 4(11) of the Act), and the enabling of persons with a disability to realise their potential for physical, social, emotional and intellectual development, and participation in social life (s 14) (McGarrigle at [41]).
Her Honour goes on to look at the words reasonable and necessary in their specific context (being the criteria in s 34(1) of the Act) and identifies that each word requires a different kind of assessment (McGarrigle at [91]). ‘Reasonable’ appears to be directed at factors such as the value for money criteria (s 34(1)(c)), and being most appropriately funded by the NDIS and not some other generally available service (s 34(1)(f)). ‘Necessary’ appears to be tied to the evaluation of factors such as assisting a participant to pursue their stated goals (s 34(1)(a)), facilitating their social and economic participation (s 34(1)(b)), and being effective and beneficial given current good practice (s 34(1)(d)). Both criteria are identified as arising in respect of whether funding takes account of what it is reasonable to expect families and others to provide (s 34(1)(e), at [92]).
The value for money criterion was identified as perhaps the critical factor in the two lift cases summarised above (LZMX and Loadsman). I note that in this matter the Respondent’s submissions have identified ss 34(1)(c) and (e) of the Act, and that it was explicitly submitted at the hearing that Mrs Snoxell’s family should contribute to the lift installation.
I consider that it is appropriate in this matter to concentrate in particular on the value for money criterion. As noted, this can be understood as addressing the idea of reasonableness. That is, in short, there is no substantial argument that can be made to support a finding, for example, that a lift will not assist Mrs Snoxell with her goals.
A great deal of attention has been paid in this matter to the personal choices of Mrs Snoxell, made together with her husband. Throughout the hearing, and during their prior engagements within the NDIS, they were both honest and direct in the information provided.
Quite some time and effort has been directed to the threshold question of site coverage. I am satisfied that while 35% site coverage in this case may appear restrictive, it does permit a footprint of nearly 15.5m by just over 25m. There is clearly some merit in the general thrust of the Respondent’s argument which is that design decisions were made with personal and family needs in mind.
At the same time, the design features very clearly meet Mrs Snoxell’s disability needs. That is, at a ‘micro’ level, accessibility requirements have been met, yet at a ‘macro’ level, the two-storey design inherently carries with it a very significant accessibility barrier.
Nevertheless, I am reluctant to invest too heavily in the concept of a lifestyle choice, despite the submissions of the Respondent. As I have set out above, in summary form, the Act clearly emphasises choice as a matter of priority. The sincerity with which Mrs Snoxell and her husband approached the matter has in a way only served to emphasise this concept, and relying on the concept ‘lifestyle choice’ might be misunderstood as carrying a negative connotation.
However, to be fair to the Respondent, a better interpretation of the lifestyle concept may be that it is a reflection of the general principle stated in the Rules, being that supports must be related to the disability. This is probably what the Tribunal in LZMX was referring to when stating that supports must be ‘consequent upon, and relevant to’ the disability.
Equally, and as was quite properly acknowledged by the Respondent at the hearing, the Act places some emphasis on respect for family. It is a little unfortunate, in this context, that one of the key submissions for the Respondent in this matter is that it may be more appropriate for the Snoxell family to fund a lift than for the scheme to fund it. One of the main problems with this submission is that it potentially involves some rather significant assumptions about the family and their capacity to assist.
What I do take from this submission, however, is the importance of the cost-benefit analysis that is inherent in the value for money consideration. This is explicit in the terms of the Rules, where the cost is said to be relative to the benefits, taking into account whether comparable supports would achieve the same effect at substantially lower cost.
Applying this formula in the present matter involves a degree of speculation. Unlike the situation in Loadsman where a comparison was made between concrete alternative supports, I do not have before me such clear-cut options.
It might be said that the lack of options arises from what the Respondent contended was a fait accompli; that is, the support request followed directly from the design choices arrived at by the Snoxells. This issue is substantively similar to the contention about lifestyle choice and, again, needs to be treated with some caution. However, the consent orders issued by the Full Federal Court in QDKH v National Disability Insurance Agency [2021] FCAFC 189, dated 18 October 2021, note that the development of a statement of participant supports is a collaborative process. The Respondent’s contention therefore has some basis in the Act, albeit the Snoxells might well argue that they attempted to engage with limited success.
I do have before me though some quite detailed analysis, to which experts from both sides contributed both in writing and at the hearing. Accordingly, the comparison is between funding the lift as against repurposing spaces on the ground floor. The principal focus of this discussion was on the use of the guest bedroom.
The most critical part of this evidence addressed the adequacy of that space in the context of relevant accessibility guidelines. More particularly, the option examined was for the couple to abandon the master suite upstairs and occupy the guest room, or perhaps more accurately the guest suite, as it includes a walk-in robe and en-suite bathroom (which I accept is larger than that upstairs).
The evidence of both experts was to the effect that this was a possible option. I accept Ms Hext was at pains to stress the desirability of Mrs Snoxell having full access to her home, and that she stressed the possibility that this option may not remain feasible should Mrs Snoxell’s needs change.
The evidence also demonstrated that further bed configurations are potentially available, albeit this is one of the somewhat speculative dimensions of this particular trade-off exercise, since costings were not provided. I accept that there has, nonetheless, been some detailed consideration of dimensions in the material provided.
Other options explored at the hearing were the re-purposing of other downstairs spaces. These were not optimal in the eyes of Mrs Snoxell and, in the case of the sewing room, would be accompanied by more than a minor amount of remodelling, which was not pursued in any detail and not costed. I accept that, in principle, Ms Hammond’s report indicates that this room might feasibly be repurposed.
On balance, I am satisfied that there is at least one obvious and feasible alternative to the particular support being sought in this case and which is more cost-effective. Accordingly, I find that the decision of the Respondent not to fund the lift is in fact the correct and preferable decision.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 78 (eighty) paragraphs are a true copy of the reasons for the decision herein of Dr Stewart Fenwick, Senior Member
...[sgd]....................................................................
Associate
Dated: 17 December 2021
Dates of hearing: 13 & 14 October 2021 Applicant: By videoconference Counsel for the Respondent: Ms Jess Moir Solicitors for the Respondent: Ms Sarah Wise, National Disability Insurance Agency
0
5
0